DISCLAIMERS

This publication was redacted in July 2022 before the Formal Consultative Meeting and the Ninth Review Conference.

This publication was redacted in collaboration with the BWC Implementation Support Unit and the Faculty of Law of the Lille Catholic University. This publication reflects the views and analysis of the author only, nothing in it should be read or interpreted as the official position of the United Nations or the Faculty of Law.

THE INTERNATIONAL SETTLEMENT OF DISPUTES IN THE BIOLOGICAL WEAPONS CONVENTION

1. Introduction

“The Biological Weapons Convention is the sole international Treaty prohibiting purely natural elements” as underlined by Kenneth D. WARD, US Permanent Representative to the Biological Weapons Convention (BWC) during the ceremony organized to commemorate the 50th anniversary of the opening to signature of the Treaty. Diseases indeed have for origin the natural environment. However, they can be multiplied, developed, produced, modified by humans with the possible consequence of causing devastating effects on populations. The BWC was specifically designed to prohibit and avoid the harmful use of diseases.

1.1. The Biological Weapons Convention

The Biological Weapons Convention was negotiated at the Conference of the Committee on Disarmament (CCD) between 1969 and 1971, following a British proposal of 1968 to reinforce the prohibition of the use of biological and bacteriological methods of war in the Geneva Protocol  of 1925 . Despite the reservations of certain States (wishing to ban simultaneously both biological and chemical weapons), the draft submitted by the United Kingdom progressively gained supports. The United States (US) supported the proposal following the country’s renunciation of all biological and toxin weapons in 1970. In March 1971, the Soviet Union also expressed its support. However, both the US and the USSR toned down the original text during bilateral negotiations (e.g., the express ban of the use of biological weapons appearing in the first UK proposal was later removed) . The final draft was submitted to the UN General Assembly on 16 December 1971 where no State voted against the text (only France abstained). Finally, on 10 April 1972, the Convention was signed by 80 Countries and opened to signature in London, Moscow and Washington (the UK, the US and the USSR being the three depositary countries of the text). The Biological Weapons Convention entered into force on 26 March 1975.

The Biological Weapons Convention  – available in annex I – is composed of 15 Articles and contains, inter alia, the following obligations. The first Article provides for the general prohibition of development, production, stockpiling, acquisition or retention of biological or toxin weapons as well as related equipment or means of delivery . Article II obliges States to destroy existing biological weapons or to divert them towards peaceful uses ; the Third Article prohibits the transfer or assistance to transfer any biological weapons or related material , Article IV obliges States to take necessary measures to nationally implement the Convention . In case of issues or dispute in the application of BWC, States shall consult and cooperate under Article V , or refer the matter to the UN Security Council pursuant to Article VI . Article VII provides an obligation to assist States victim of the use of biological weapons , Article IX obliges States to continue their efforts and negotiations towards an agreement in chemical disarmament  (the Chemical Weapons Convention or CWC was indeed signed later in 1993). Finally, under Article X, States shall facilitate and should collaborate in “the fullest possible exchange of equipment, materials and scientific and technological information for the use of bacteriological agents and toxins for peaceful purposes”  while prohibiting the hampering of the economic or technological development of States Parties. In addition to these elements, the BWC expressly recalled that the Convention is complementary to the 1925 Geneva Protocol: “Nothing in this Convention shall be interpretated as in any way limiting or detracting from the obligations assumed by any State under the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare signed at Geneva on 17 June 1925” .

1.2. The actual relevance of the Biological Weapons Convention

Although history showed that biological warfare is rarely used by States: The Biological Weapons Convention does not lose its substance or its relevance. Indeed, if the use of biological weapons would not allow the user party to gain a significant military advantage , especially since the production and use of biological agents as offensive weapons are costly and require a high level of technological mastery. This absence of military advantage from the use of bioweapons was indeed one of the arguments used by certain States to justify the absence of verification mechanism in the Treaty .

The Covid-19 pandemic which has affected the whole world since 2019 has shown that a biological agent can affect a very large number of people in a very short time despite certain actions taken by the authorities and that this pandemic has so far had deadly consequences. Therefore, it remains fundamentally important to prevent any State from developing weapons and tools with such consequences. This is the concept of biological disarmament, which remains more relevant than ever.

Moreover, the situation in Ukraine shows once again that the Biological Weapons Convention is relevant in the 21st century. Indeed, accusations by the Russian Federation that Ukraine is developing biological weapons on its territory together with the United States  raise many legal and political questions under the Convention. Categorically rejecting the Russian accusations, the US  and Ukraine face Russia in a dispute over the application of the Convention. Thus, for the second time in the history of the Treaty, Article V of the Convention was activated by the Russian Federation triggering a consultation process. This situation shows once again that Conventions and especially the disarmament instruments are "living" Treaties and that disputes may arise regarding their application or interpretation. 

1.3. Defining the concepts of dispute and dispute settlement

Disputes are indeed inherent to international relations, the Permanent Court of International Justice (PCIJ) defined a dispute in the Mavrommatis case in 1924 as “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons” . Disputes may then occur within the scope of the application or interpretation of a treaty or convention such as the BWC.  

The peaceful dispute settlement is then the resolution of the disagreement through peaceful means (thus excluding armed conflict and coercion). States are obliged under International Law (in essence the UN Charter), to settle peacefully their disputes: “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered” , as confirmed by the UN General Assembly in 1982 in its Resolution 37/10 . According to the Charter of the United Nations (UN), which deals with the settlement of disputes in its chapter VI, “The Parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice” . 

The question of dispute settlement within the scope of the Biological Weapons Convention will then be analysed in this thesis. However, it is relevant and necessary to review the definition of certain other terms prior any further developments. First of all, despite the absence of consensual definition of Weapons of Mass Destruction, are included in this category of means of warfare “chemical, biological, radiological, nuclear weapons capable of a high order of destruction or causing mass casualties and exclude the means of transporting or propelling the weapon where such means is a separable and divisible part from the weapon” . Such weapons are all specifically addressed by disarmament Treaties and Convention such as the Biological Weapons Convention in order to limit, reduce, abolish these types of weapons. That is the sense of Disarmament and the ultimate objective of International Disarmament Instruments.  

The Biological Weapons Convention was indeed drafted and signed to abolish biological weapons. Also called bioweapons, this type of weapons of mass destruction (WMD) is defined by the BWC itself as “Microbial or other biological agents, or toxins, whatever their origin or method of production, of types and quantities that have no justification for prophylactic, protective or other peaceful purposes; weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict” .

1.4. Central research issues

This thesis will focus on examining the dispute settlement regime applicable to the Biological Weapons Convention and the Biological Disarmament in General. It is however interesting to analyse other WMD disarmament regimes such as the nuclear and chemical frameworks to provide certain suggestions for the BWC. Finally, this thesis will find solutions from beyond disarmament regimes to strengthen and enhance the dispute settlement system of the Biological Weapons Convention. 

Indeed, as mentioned above, disputes are inherent to international relations and may occur in the scope of the application or interpretation of an international instrument such as the Biological Weapons Convention. In this context, what is the applicable regime ensuring the settlement of dispute arising within the scope of the Biological Weapons Convention? Is this framework efficient and sufficient? What solutions could be found in other WMD regimes and beyond disarmament instruments?

This thesis will first examine the framework applicable to the BWC and to other WMD disarmament regimes through a comparative approach and by analysing common mechanisms (2). Then, the Biological Weapons Disarmament regime will be further analysed to address the issues of this framework in matters of dispute settlement with relevant examples (3). Finally, this study will leave the disarmament field to analyse other international instruments with original dispute settlement regimes that may be of interest to improve and strengthen the BWC (4) before concluding on the subject and on outcomes of the incoming Review Conference (4).

2. Weapons of Mass Destruction Disarmament regimes and common mechanisms

Not all disarmament treaties have the same mechanisms for dispute settlement. Indeed, all these instruments differ from each other and have particular characteristics. This section will look at the different dispute settlement mechanisms of disarmament treaties in a comparative manner (2.1), as well as at the frameworks that are common to them (2.2).

2.1. WMD Disarmament regimes: a comparative approach

This section will comparatively analyse the three different disarmament regimes of weapons of mass destructions to examine their own dispute settlement system with the view of providing suggestion to enhance the dispute resolution mechanism of the BWC. Will be compared in this section the biological (2.1.1), chemical (2.1.2), and nuclear (2.1.3) frameworks. 

2.1.1. The Biological Weapons regime: the BWC

Exception within the Weapons of Mass Destruction (WMD) regimes, the Biological Weapons Convention (BWC) contains no provision for verification. Therefore, there is no mean of verifying the compliance or the non-compliance of States Parties to the Convention . As there is no instrument ensuring the assessment of the status of compliance of States Parties, there is no mechanism for litigation over compliance in the Treaty. The lack of mechanisms for verification and litigation over compliance in the BWC will be address later in this thesis.  

In the absence of strict verification provisions, the Convention is composed of “functional substitutes”  trying to ensure a minimum of compliance in the absence of an appropriate regime. Those residuals mechanisms are enshrined in four Articles of the Treaty: articles IV to VII.

Article IV provides an obligation of national implementation of the Biological Weapons Convention: “Each State Party to this Convention shall, in accordance with its constitutional processes, take any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition or retention of the agents, toxins, weapons, equipment and means of delivery specified in Article I of the Convention, within the territory of such State, under its jurisdiction or under its control anywhere.” . The letter of this article is broad and allows States to choose the mean of implementation between a large scale of options (from laws to administrative decrees and judicial decisions) . It appears that States did not chose the same way: some have a specific BWC legislation designed exclusively at transposing into the national system the Treaty, others have fragmented provisions in various acts (legislative or administrative) which target specifically an area more or less directly covered by the BWC such as biosafety, biosecurity, counterterrorism… However, it appears that the global implementation of the Biological Weapons Convention is weak. The NGO VERTIC, in a report of 2016  underlines the “significant quantitative gaps in States Parties’ implementing measures for the Convention; many States have yet to adopt necessary measures to give effect to certain obligations” . This lack of implementation is due to a lack of sufficient resources and expertise associated to a low political willingness to enhance the national framework . The States Parties to the BWC are well aware of this situation and decided at the Eighth Review Conference (RevCon) in 2016 to discuss the status of national implementation on a regular basis during Meeting of States Parties (MSP) . To enhance national implementation of the Convention, States Parties agreed on 1986 during the Second Review Conference to submit Confidence Building Measures (CBMs), this mechanism will be developed in chapter 3.3.2.. The UN Security Council (UNSC), in order to improve and increase national implementation of WMD regimes, adopted in 2004 the Resolution 1540. This Resolution will be further analysed in chapter 2.2.1. dealing with common mechanisms to WMD regimes.

The main provision of the BWC ensuring dispute settlement is Article V on consultation and cooperation. According to it, “The States Parties to this Convention undertake to consult one another and to co-operate in solving any problems which may arise in relation to the objective of, or in the application of the provisions of, the Convention. Consultations and co-operation pursuant to this Article may also be undertaken through appropriate international procedures within the framework of the United Nations and in accordance with the Charter” . This Article allows States Parties to address in a diplomatic manner, eventual non-compliance concerns as well as interpretation issues that may arise. This article seems to open to both bilateral (consult one another) and multilateral (undertaken through appropriate international procedures within the framework of the United Nations and in accordance with its Charter) processes . Further procedures were established at the First Review Conference in 1980 by consensus: “The procedures include, inter alia, the right of any State Party subsequently to request that a consultative meeting open to all States Parties be convened at expert level”  despite the soviet opposition to establish a Consultative Committee of Experts. The Second Review Conference in 1986 recalled the 1980 declaration recalling the appropriate international procedures  and tried to improve the procedural framework by keeping the door open to a wide range of issues and to the participation of experts: “The Conference, taking into account views expressed concerning the need to strengthen the implementation of the provisions of Article V, has agreed: […] that a consultative meeting may consider any problems which may arise in relation to the objective of, or in the application of the provisions of the Convention, suggest ways and means for further clarifying, inter alia, with the assistance of technical experts, any matter considered ambiguous or unresolved, as well as initiate appropriate international procedures within the framework of the United Nations and in accordance with its Charter” . However, despite the important clarification of the two Review Conferences, it is still not clear whether States Parties have the obligation to cooperate with an eventual investigative mechanism . During the Third Review Conference, States Parties to the BWC reaffirmed the agreement reached during the two first Conferences and decided that a consultative meeting request shall be addressed to the Depositaries (the Russian Federation, the United Kingdom and the United States) which shall inform the other States Parties and convene an informal meeting of the concerned States within 30 days and a formal consultative meeting within 60 days . These agreed procedures were reaffirmed during the Eighth Review Conference in 2016 . Article V was activated only twice in 1997 by Cuba following Cuban suspicions of the use of biological weapons by the United States and very recently in 2022 by the Russian Federation. These incidents and the consultative meetings of States Parties under Article V will be addressed in section 3.2.

Article VI of the Biological Weapons Convention is the sole mechanism allowing a State Party to lodge a complaint to an external organ: the UN Security Council (UNSC). Divided in two paragraphs, Article VI provides the following mechanism: “(1) Any State Party to this Convention which finds that any other State Party is acting in breach of obligations deriving from the provisions of the Convention may lodge a complaint with the Security Council of the United Nations. Such a complaint should include all possible evidence confirming its validity, as well as a request for its consideration by the Security Council. (2) Each State Party to this Convention undertakes to co-operate in carrying out any investigation which the Security Council may initiate, in accordance with the provisions of the Charter of the United Nations, on the basis of the complaint received by the Council. The Security Council shall inform the States Parties to the Convention of the results of the investigation” . This article is the second mechanism of dispute settlement under the Convention. However, it should be noted that this mechanism may be activated only over non-compliance, thus, no referral to the UNSC may be done over an issue of interpretation of the Convention. After the opening to signature of the Convention in 1972, Poland, the United Kingdom and Yugoslavia sponsored the so-called Accompanying Resolution which could have allowed the UNSC “(i) to declare its readiness (a) to consider immediately any complaints lodged under Article VI of the Convention; (b) to take all necessary measures for the investigation of a complaint; (c) to inform the States Parties to the Convention of the results of the investigation, and; (ii) to call upon all States Parties to co-operate for the purpose of implementing the provisions of this Resolution”  if this proposal was adopted. However, this draft resolution was withdrawn before being voted by reason of the threat of the use by China of its veto right . The lack of the adoption of such a resolution or declaration implies a lack of consent of the UNSC to consider a complaint under Article VI and launch an investigation if needed . States Parties to the BWC recalled their invitation to the UN Security Council to consent and recalled that a complaint under Article VI “should include all possible evidence confirming its validity. It stresses that as, in the case of the implementation of all the provisions and procedures set forth in the Convention, the procedures foreseen in Article VI should be implemented in good faith within the scope of the Convention” . The main issue of this mechanism is the possibility of blockage by any of the five Permanent Member of the Security Council that would lead to the impossible conduction of an investigation in such a situation. The limits of this article will be addressed at a later stage in section 3.1.4. So far, this Article have never been invoked by a State Party to the Convention. 

The Biological Weapons Convention offers then two options for dispute settlement: consultative meetings under Article V and referral to the UN Security Council under Article VI. The legal frameworks regulating Chemical Weapons and Nuclear Weapons have more options that will be discussed in the two following sections.

2.1.2. The Chemical Weapons regime: the CWC

Major difference with the Biological Weapons Convention, the text of the Chemical Weapons Convention (hereafter CWC) includes provisions for litigation, dispute settlement but also on verification. The negotiations of the CWC started in 1968 at the Conference on Disarmament and the Convention was opened to signature in 1993 following the adoption of a draft Convention 1992 . In 2022, 193 States are party to the CWC representing more than 98% of the world population . The system of litigation of the Chemical Weapons Convention is enshrined in one main provision: Article XIV and by extension, Articles IX and XII. These elements will be successively analysed in this thesis.

The mechanism of settlement of disputes over compliance in the context of the CWC is dependent on verification and fact-finding instruments. It should be noted that fact-finding is autonomous and does not require necessarily a dispute to be launched . The verification process may be divided in four different procedures. The routine verification measures are used to assess the veracity of a State’s declarations. The challenge inspections under Article IX allows the Technical Secretariat to carry out inspections following certain non-compliance concerns. The investigations following an alleged use of chemical weapons (pursuant to part XI of the Annex on Implementation and Verification). Finally, clarification procedures allow to resolve compliance concerns through consultation.

Article IX of the CWC provides for consultations, cooperation and fact-finding: “1. States Parties shall consult and cooperate, directly among themselves, or through the Organization or other appropriate international procedures, including procedures within the framework of the United Nations and in accordance with its Charter, on any matter which may be raised relating to the object and purpose, or the implementation of the provisions, of this Convention.” . This article creates an obligation over States to cooperate and consult each other in a formula relatively similar to the one used in Article V of the Biological Weapons Convention.

The main Article providing for a real dispute settlement mechanism is Article XIV. Constituted of 6 paragraphs, the text gives to States options for the peaceful settlement of disputes that may arise “concerning the application or the interpretation of this Convention” . Here, it appears that the CWC expressly contains the two sides of litigation: disputes that may arise over compliance to the obligations enshrined in the Convention, and over the interpretation of the latter. The second paragraph of the Convention also comprehensively address the issue of dispute settlement by including the disputes arising between States Parties: “When a dispute arises between two or more States Parties”  as well as disputes between States Parties and the OPCW: “[…] or between one or more States Parties and the Organization” . The range of options proposed by the CWC for dispute settlement is wide: from the diplomatic to the judicial solutions.

The so-called diplomatic means of dispute settlement are evoked in the second paragraph of Article XIV: “The parties concerned shall consult together with a view to the expeditious settlement of the dispute by negotiation or by other peaceful means of the parties’ choice, including recourse to appropriate organs of this Convention” .  The evoked means are explicitly those listed in Article 33 of the Charter of the United Nations , namely negotiation, enquiry, mediation, conciliation, resort to agencies or arrangements . In addition to the diplomatic options, the text of Article XIV refers to judicial litigation through a referral to the International Court of Justice (hereafter ICJ): “by mutual consent, referral to the International Court of Justice in conformity with the Statute of the Court” . The second paragraph is not the sole mention of the ICJ in this Article: the fifth paragraph also gives to the Conference and the Executive Council (separately) the power to request the ICJ to give an advisory opinion: “The Conference and the Executive Council are separately empowered, subject to authorization from the General Assembly of the United Nations, to request the International Court of Justice to give an advisory opinion on any legal question arising within the scope of the activities of the Organization. An agreement between the Organization and the United Nations shall be concluded for this purpose in accordance with Article VIII, paragraph 34 (a).” . This option gives to the OPCW and its Executive Council the possibility to seize the ICJ even if States Parties concerned by the dispute did not chose this option. However, this power is limited to the request of an advisory opinion. The fourth paragraph of Article XIV provides for an original mechanism: the possibility for the Conference to consider questions related to disputes (if raised by States Parties or by the Executive Council) through the establishment or the entrustment of “organs with tasks related to the settlement of disputes”. This provision gives to the Conference the power to creates ad hoc or to entrust existing organs to subsidiarily  ensure the settlement of disputes. These organs may be charged of fact-finding, conciliation or arbitration missions . It should be noted that, according to Article XIV, the Executive Council still have the possibility to contribute to the settlement of dispute by its good offices, or by any other suggestion , giving to the Executive Council a de facto arbitrator role.

Finally, Article XII provides for a list of measures that may be taken to “Redress a situation and to ensure compliance” according to the title of the Article . These measures may be decided by the Conference following a situation of non-compliance. The first option is the restriction or the suspension of a State’s rights and privileges under the CWC (paragraph 2). The Conference may also “recommend collective measures to States Parties in conformity with international law” . Finally, the Conference may refer directly to the UN Security Council or the UN General Assembly: “The Conference shall, in cases of particular gravity, bring the issue, including relevant information and conclusions, to the attention of the United Nations General Assembly and the United Nations Security Council.” . Article XII was never invoked until 2020 by States Parties, despite the fact that certain violations of the Convention have been established. The invocation of Article XII has been indeed “discarded as politically unwise and counterproductive” . In 2020, the Conference decided to suspend the Syrian Arab Republic privileges (in essence, the right to vote to the Conference, to the Executive Council, right to stand for election to the Executive Council, right to be lead an office in any body). This decision is the illustration of the shift from the managerial to a coercive approach chose by the Conference according to R. TRAPP . This shift allowed to protect the CWC and to avoid States to take unilateral or multilateral measures outside the scope of the Convention .

The Chemical Weapons Convention thereby presents a wide range of solutions from diplomatic to judicial for the settlement of disputes that may arise over compliance and interpretation, involving States Parties and the OPCW. The following section will analyse the options offered for litigation and dispute settlement within the Nuclear Weapons Regime.

2.1.3. The Nuclear Weapons regime: the CTBT and the NPT

Major difference with the biological disarmament system, the nuclear disarmament regime is composed by an important number of Treaties and Conventions: from the Partial Test Ban Treaty (PTBT) of 1963 to the Treaty on the Prohibition of Nuclear Weapons of 2017, a large number of treaties were signed with the objective to ensure the fullest nuclear disarmament as possible at the international and regional levels. For the purposes of this thesis, will be studied the regimes of the Non-Proliferation Treaty (NPT) of 1968 and the Comprehensive Nuclear-Test-Ban Treaty (CTBT) of 1996 and their respective International Organisation. Nuclear disarmament treaties are listed in Annex II.

The NPT, adopted in 1968, contains no provision for litigation and the peaceful settlement of disputes that may arise in the application and/or interpretation of the Treaty . The NPT does not either provides for consultations or other diplomatic means. The International Atomic Energy Agency (Hereafter IAEA), responsible for the implementation of safeguards (non-nuclear-weapon States are required to conclude safeguard agreements with the IAEA pursuant to Article III of the NPT ) provides in its Statute for a solution to settle disputes . According to Article XVII of the IAEA Statute, States Parties may refer to the International Court of Justice if negotiations failed, to solve “Any question or dispute concerning the interpretation or application of this Statute” . The scope is indeed limited to the application and/or interpretation of the Statute only, disputes related to the application of nuclear disarmament treaties such as the NPT are then excluded. The safeguard agreements usually provide for dispute settlement mechanisms : the document establishing the Structure and content of such agreements  has a dispute settlement clause: “The Agreement should provide that the parties thereto shall, at the request of either, consult about any question arising out of the interpretation or application thereof” . If the negotiations fail, the document provides for an arbitration clause: “The Agreement should provide that any dispute arising out of the interpretation or application thereof except a dispute with regard to a finding by the Board under paragraph 19 above or an action taken by the Board pursuant to such a finding which is not settled by negotiation or another procedure agreed to by the parties should, on the request of either party, be submitted to an arbitral tribunal composed as follows: each party would designate one arbitrator, and the two arbitrators so designated would elect a third, who would be the Chairman. If, within 30 days of the request for arbitration, either party has not designated an arbitrator, either party to the dispute may request the President of the International Court of Justice to appoint an arbitrator. The same procedure would apply if, within 30 days of the designation or appointment of the second arbitrator, the third arbitrator had not been elected. A majority of the members of the arbitral tribunal would constitute a quorum, and all decisions would require the concurrence of two arbitrators. The arbitral procedure would be fixed by the tribunal. The decisions of the tribunal would be binding on both parties” . So far, no recourse to arbitration following the clauses of safeguard agreements have been made .

In any case, in the absence of a dispute settlement clause in the treaty, the general regime of peaceful means of dispute settlement is the main framework applicable. This framework is essentially provided by Chapter VI of the United Nations Charter on the Pacific Settlement of Disputes: Article 33 requires States to “seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their own choice” .  Articles 34 to 38 give to the Security Council certain powers to help the settlement process and, Chapter VII provides for coercive measures if needed. The judicial settlement before the International Court is also possible pursuant to Article 36 of the ICJ Statute: “The States Parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal dispute concerning: a. the interpretation of a treaty, b. any question of international law, c. the existence of any fact which, if established, would constitute a breach of an international obligation” . In the NPT regime, the UN Charter regime of dispute settlement and the referral to the ICJ are possible, in the absence of a specific mechanism.

Other fundamental instrument of the nuclear disarmament regime, the Comprehensive Nuclear-Test-Ban Treaty (CTBT) provides for a dispute settlement mechanism. Adopted by the UN General Assembly in 1996  and opened to signature during the same year, “bans nuclear explosions by everyone, everywhere: on the Earth's surface, in the atmosphere, underwater and underground” : “1. Each State Party undertakes not to carry out any nuclear weapon test explosion or any other nuclear explosion, and to prohibit and prevent any such nuclear explosion at any place under its jurisdiction or control. 2. Each State Party undertakes, furthermore, to refrain from causing, encouraging, or in any way participating in the carrying out of any nuclear weapon test explosion or any other nuclear explosion” . 

The system of the CTBT presents an interesting structural similarity to the CWC: certain treaties provisions are identical, the structure of the organization (the Comprehensive Nuclear-Test-Ban Organization or CTBTO) is very similar to the OPCW. The CTBT regime for dispute settlement, like the CWC, is based on verification for litigation over compliance. The Verification system of the CTBT is enshrined in Article IV of the Treaty. This provision creates an international monitoring system, the possibility of on-site inspections (following a request from a State Party), the submission of Confidence Building Measures (CBMs) and, for consultations and clarification above compliance . Pursuant to Article IV §29, States Parties should “first make effort to clarify and resolve, among themselves or with or through the Organization, any matter which may cause concern about possible non-compliance with the basic obligations of this Treaty” . The State(s) concerned with clarification is obliged to cooperate and provide information clarifying its compliance (or non-compliance): “shall provide” . Consultations for clarification under Article IV §29 and 30 are the first diplomatic steps for dispute settlement within the scope of the CTBT.

The central provision for dispute settlement and litigation in the CTBT is Article VI on the Settlement of Disputes . Here also, this article is very similar to Article XIV of the CWC on dispute settlement. In a similar way, the CTBT dispute settlement mechanism covers both dispute over interpretation and application (including compliance) as well as disputes arising between States Parties and between one or more State Parties and the CTBTO . Article VI requires parties to a dispute to settle it through negotiations and other peaceful means including the CTBTO Executive Council good offices . Pursuant to this article, the parties may refer to the International Court of Justice to resolve the dispute . Similarly to the Chemical Weapons disarmament system, the Conference may hear disputes “raised by States Parties” or brought by the Executive Council which may create or entrust organs . Finally, the Executive Council and the Conference are independently empowered to refer the dispute to the ICJ by requesting an advisory opinion .

Where dispute settlement failed or if a situation of non-compliance is not resolved the CTBT provides for certain measures to redress. In much the same wording as Article XII of the CWC, Article V of the CTBT provides for measures to redress situations of non-compliance. Specifically, the Conference of States Parties may decide to suspend the Rights and Privileges of the State concerned , to recommend to the Member States to take collective measures  or to submit the dispute to the United Nations . With regard to this last option, it should be underlined that, contrary to the CWC which expressly mentions the Security Council and the General Assembly , the CTBT refers to the "United Nations" in a broad way. It is therefore possible to assume that, of course, this includes the UNSC and the UNGA but also other bodies such as the Secretary General.

It clearly appears that the BWC mechanisms are different from other WMD disarmament systems such as the CWC and nuclear disarmament. The Biological Weapons Convention would gain at transposing certain tools and elements from the dispute settlement regimes of the CWC and of the CTBT to enhance its own dispute settlement regime. In addition to their respective regimes, certain mechanisms such as the UNSC Resolution 1540 of 2004 and the UNSG Mechanism are common to all WMD disarmament systems .

2.2. Inputs from mechanisms common to WMD regimes

To strengthen weapons of mass destruction disarmament treaties and their regimes, certain mechanisms have been established. The UNSC Resolution 1540 of 2004 is a mechanism enhancing compliance to disarmament instruments and designed to update WMD regimes (2.2.1). The UNSG Mechanism, is a special instrument allowing the Secretary General to investigate alleged uses of biological and/or chemical weapons (2.2.2). Those instruments and their contribution to dispute settlement will be developed in this chapter.

2.2.1. The UNSC Resolution 1540 (2004)

Adopted unanimously on 28 April 2004 within the framework of Chapter VII of the Charter (“Affirming that proliferation of nuclear, chemical and biological weapons as well as their means of delivery, constitutes a threat to international peace and security” ), the United Nations Security Council Resolution No. 1540 of 2004  is legally-binding upon States . This Resolution updates the WMD disarmament regime by creating new obligations upon States while recalling Treaties requirements. The Resolution deals with the recent issue that is terrorism and the development and use for terrorist purposes of WMD through a multidisciplinary approach . This text “expands national implementation obligations”  to counterterrorism by preventing non-States actors to acquire or use weapons of mass destruction or related materials through national measures and import and export controls as well as protection of materials and establishments. The Resolution also requires States to make sure that WMD-related offences are punishable under national law. However, the UNSC Resolution 1540 does not solely create further obligations for States, it also establishes two mechanisms: one designed to report to the Council for the implementation of the Resolution , and a second to assist States in the implementation of the provisions . 

The UNSC Resolution 1540 is, in a certain way, despite it is not a Treaty, a mechanism above the NPT, the CWC and the BWC. By its legal status of Resolution of the UNSC (taken in application of Chapter VII of the Charter), the text is binding over all States even if they are not party the three Conventions . In this sense, it brings a greater universality to WMD disarmament than the regimes the Treaties alone. Moreover, the universality by nature of the Resolution creates new possibilities for dispute settlement: the text requires States to refrain from providing any form of support to non-States actors that attempt to acquire and/or use WMD, to establish and enforce domestic controls to prevent the proliferation of WMD. On the basis of these obligations (universal because of the nature of the Resolution), States Parties to WMD Treaties such as the BWC with concerns on the activities of another State that are likely to contribute to the proliferation of WMD in violation of the Resolution, may raise these concerns before traditional dispute settlement mechanisms enshrined in the UN Charter. For example, if a State, not party to the BWC, provides assistance to a terrorist group to acquire biological weapons; other States (regardless the fact they are party to the BWC or not) may refer the matter to the ICJ pursuant to Article 36(2)(c) of the ICJ Statute. Here, the Resolution avoids a possible impunity of the State non-party to the Convention . Although the use of WMD is indeed indirectly prohibited under International Customary Law  (through the impossible respect by nature of principles of distinction and proportionality and precaution by WMD), it is however unclear whether non-proliferation of WMD is also a customary obligation. Then, the Resolution fills a gap by creating a universal obligation in WMD disarmament. Obligation subject to the traditional enforcement methods enshrined in the UN Charter.

Furthermore, pursuant to its paragraphs 7 on assistance, 9 on discussion and cooperation and 10 on collective measures, the Resolution 1540 of the Security Council establishes a new framework for cooperation on WMD disarmament and, indirectly, for the diplomatic settlement of disputes that may arise in this context. However, despite the huge step towards universal WMD non-proliferation, the Resolution is not a dispute-settlement mechanism in itself. The text is only establishing the beginning of a universal obligation of disarmament by prohibiting the assistance to NSAs attempting to develop and/or use WMD among others. Furthermore, the obligations established by this Resolution remain too wide to be implemented sufficiently and effectively  and, this vagueness of the obligations make their implementation more difficult, and their enforcement complicated.

2.2.2. The UNSG Mechanism

Established by the UN General Assembly Resolution No. A/RES/42/37  which was adopted on 30 November 1987, the United Nations Secretary General Mechanism is designed to enables the UN Secretary General to launch missions to investigate the alleged uses of chemical, biological and toxin weapons in violation of the 1925 Geneva Protocol . This then excludes the application of this mechanisms to alleged uses of nuclear weapons among others. The framework of this mechanism was confirmed by the Resolution No. 620 of the UN Security Council  and strengthened with procedures adopted by the General Assembly in 1990 . Within this framework, a UN Member State may request the Secretary General to launch a mission of investigation which will report to all Member States . Even if the OPCW already possesses the mandate to investigate alleged use of chemical weapons, this is not the possible if the concerned State is not Party to the CWC and for Biological and Toxin Weapons. In 2013, when the UN Secretary General launched a mission of investigation in Syria, the country was note (at the time), party to the CWC. The UNSGM then allow situations of alleged uses of chemical weapons to be investigated even if they concern non-States Parties to the CWC .To allow a greater reactivity, the UN is required by the Guidelines and Procedures to maintain a roaster of experts and laboratories, the UNSGM is indeed not a proper investigative body with its own resources and capacities. Since the UNSGM mission of investigation conducted in Syria, the UN Secretary General increased its efforts to enhance the Mechanism’s operational capacity  through the developments of a laboratory network, cooperation arrangements with the UN Office for Disarmament Affairs, the OPCW, the WHO…

Like the OPCW verification mechanisms, the UNSGM plays a role of fact-finding assessing the compliance (and the non-compliance) of a party to a conflict to the 1925 Geneva Protocol. The UNSGM may also be used in situations where a non-State actor allegedly used biological or chemical weapons in violation of the same 1925 Geneva Protocol. The UNSGM is not a mechanism for ensuring litigation over compliance in itself but rather an instrument for determining responsibilities. The evidence gathered by investigations conducted under the UNSGM may indeed serve as a basis for further prosecution processes. On the one hand, the individual responsibility of a private person having conducted biological or chemical activities prohibited could be engaged before national jurisdictions or, before international Courts and Tribunals such as the ICC, special tribunals... On the other hand, States may be held responsible before the ICJ following proofs obtained by the UNSGM investigation. Indeed, the prohibition of the use of chemical or biological weapons is part of customary international law  and may therefore constitute an International Wrongful Act .

The UN Secretary General Mechanism is therefore an indirect means of ensuring the settlement of disputes. By making it possible to establish responsibilities by providing evidence and factual elements, the UNSGM makes the engagement of responsibility, whether of individuals or of the State, possible before the judicial organs having jurisdiction (whether national or international).

The UNSGM is the result of efforts made by the General Assembly after the adoption of the Chemical and Biological Weapons Conventions. In order to counter the dysfunctions of the Convention, States Parties have attempted to strengthen the BWC, with mixed success.

3. The Biological Weapons Convention: specific issues and efforts

As developed in the second chapter, the Biological Weapons Convention offers a reduced number of options for dispute settlement in comparison to other disarmament regimes. There is in addition no institution comparable to the OPCW, IAEA, CTBTO to monitor and supervise and control the implementation of the BWC. The biological weapons regime, incarnated by the Biological Weapons Convention presents certain issues and weaknesses that will be developed in section 3.1. These weaknesses had and have concrete and practical consequences, these consequences will be addressed in section 3.2. through the concrete examples of 1997 and 2022.

3.1. Issues and weaknesses

The biological weapons regime presents a certain number of weaknesses for dispute settlement that will be developed in this section. There is indeed no mechanism for assessing compliance (3.1.1) as well as for dispute settlement over interpretation (3.1.2). Furthermore, the existing mechanisms, namely cooperation under Article V (3.1.3) and referral to the UNSC pursuant to Article VI also present important weaknesses and blockages (3.1.4). 

3.1.1. The absence of verification mechanism

As developed before, the Biological Weapons Convention does not provide for a litigation regime and for dispute settlement mechanisms outside consultations under Article V and referral to the UN Security Council under Article VI. There is then a clear lack of mechanisms to settle disputes that may arise over compliance with the provisions of the Convention. Furthermore, an improved instrument would involve means of assessing compliance through a verification mechanism and, there is no such instrument in the BWC.

The word verification is indeed absent from the text of the Biological Weapons Convention. According to F. Lentzos and A. Westing, “The lack of a verification mechanism is ‘not there through some oversight or through ineptness on the part of the drafters’  rather, it reflects the negotiated result of different positions and calculations” . Certain substitutes to verification exist however in the treaty. These mechanisms are enshrined in Articles IV to VII . Article IV requires States Parties to ensure the national implementation of the BWC through national measures ensuring compliance, this provision is then a mean to ensure compliance rather than to assess it. Article V provides for consultations and cooperation, under this provision, States Parties may raise concerns over compliance and convene a special meeting, however, this option cannot fundamentally lead to a solution in a situation of strong disagreement between States Parties. Article VI empowers States Parties to refer a complaint to the Security Council. This option allows to redress non-compliance, and the Security Council may launch an investigation pursuant Articles 34 and/or 39 of the Charter  to determine compliance or non-compliance . Article VII requires States to provide assistance to another State victim of the use of biological weapons provided that the Security Council established that this State has been exposed to such attack, here also the Security Council may launch an investigation process to assess whether a Member-State has been victim of a breach of the Convention by another State.

There is then no integrated mechanism ensuring compliance/non-compliance assessment. Although articles VI and VII may lead to the establishment of an investigation by the Security Council, this process is dependent on the system and procedures of the Security Council and might be affected by its limits. The weaknesses of Article VI for dispute settlement will be developed further in section 3.1.4. of this thesis. On this basis, the BWC does not provide for any means of assessing compliance from a factual point of view, both regularly and exceptionally. Thenceforth, disputes that may arise over the implementation and compliance of the Convention can only be dealt at the political level pursuant to Article V: in the absence of an institutionalised verification mechanism, this task is left to States with their own means and, of course, no mandate to investigate suspicions of breach . The United States Department of State (DoS) is for example annually publishing a report on States’ compliance with disarmament treaties  highlighting certain concerns.

Nevertheless, so far, this lack of a verification mechanism assessing situations of compliance or non-compliance. States have so far relatively well addressed such concerns using existing diplomatic solutions with quite positive outcomes , the 1997 incident and activation of Article V by Cuba is an example . However, certain concerns still remain on the table: the United States are indeed concerned by eventual breaches from the People’s Republic of China (PRC) allegedly conducting activities with dual-use applications , from the Islamic Republic of Iran allegedly conducting research to develop an offences biological programme , from the Democratic People’s Republic of Korea (North Korea) allegedly having an offensive biological weapons programme according to the US DoS , from the Russian Federation allegedly maintaining an offensive biological weapons program . The Russian Federation also expressed certain concerns over an alleged development of a biological weapons programme in Ukraine by the United States and Ukraine . On these allegations, the UN Office for Disarmament Affairs recalled that “The United Nations was not aware of any biological weapons programme in Ukraine. This remains the case today.” . In July 2022, the Russian Federation activated Article V of the BWC following these concerns.

Moreover, certain have addressed the utility for the Biological Weapons Convention to have a verification mechanism . There is indeed a common understanding that biological weapons have no military usefulness  while having huge costs of development and manufacturing. Thereby, to what extent is a verification mechanism needed to assess compliance to a Convention prohibiting weapons having no practical value? Nonetheless, the recent development of science and technology showed that the line between peaceful and offensive programmes is more and more blurred and that the access to biological agents and the development of bioweapons is becoming easier, both from the point of view of cost and that of the technology and skills required.

To conclude, the biological weapons threat never disappeared and the BWC remains an essential instrument to fight against bioweapons proliferation. Moreover, the development of science and technology is associated with a new form of threat from non-State actors such as terrorist groups. Furthermore, the current crisis in Ukraine and the Russian allegations about a bioweapons programme led by the United States and Ukraine shows that traditional inter-States concerns of non-compliance by other Member-States is still relevant in 2022.

There is then no mechanism for verification in the Biological Weapons Convention regime, such a mechanism is, however, essential for the settlement of dispute that may arise over compliance. Furthermore, outside Article V and VI, there is no instrument for dispute settlement and litigation in the Convention despite the regular occurrence of concerns, disputes and the development of new threats. However, compliance is not the sole matter over which disputes may arise. Certain disagreements may also occur on questions of interpretation of treaty provisions.

3.1.2. The absence of mechanisms ensuring interpretation

Disputes that arise over whether or not a State Party has complied with a Treaty constitute an important part of the disputes that are related to the application of the Conventions. However, another type of disagreement may arise in the application of international obligations: conflicts relating to the interpretation of a rule of international law. Interpretation is indeed essential in International Law: it conditions the very application of the treaty. Since there is no body superior to States that imposes rules on States, only they have the power to interpret the Conventions to which they are party. This interpretation is done according to the interests of the State as well as according to its relations with other countries . In the international arena, interests are never globally aligned, resulting in a multitude of competing interpretations .

The Biological Weapons Convention does not provide efficient solutions for the settlement of disputes that may arise in the context of its application. This lack includes disputes that arise over compliance as well as those arising over interpretation. Provisions of such nature however exist in other international disarmament instruments. This is the case of the Chemical Weapons Convention (CWC): its article XIV provides that the parties to a dispute concerning the interpretation of the Convention must find a solution to the disagreement by peaceful means of their own choice, which includes recourse to the International Court of Justice . This is also the case with the Comprehensive Nuclear-Test Ban Treaty (CTBT), which also gives a solution in the event of a dispute over interpretation. With a formula identical to the CWC, the CTBT obliges the parties involved in the disagreement to find a solution by peaceful means while mentioning the possibility of recourse to the ICJ .

In the text of the BWC, only Article V may serve as an instrument for interpretation and/or litigation over interpretation. The letter of this provision is however blurred: “The States Parties to this Convention undertake to consult one another ant to co-operate in solving any problems which may arise in relation to the objective of, or in the application of the provisions of the Convention” . Nothing in the text of the Convention or in the successive clarifications made during Review Conferences seems to be opposed to the use of Article V for interpretation purposes. The Final Declaration of the Eighth Review Conference for example “reaffirms that (a) this article provides an appropriate framework for States Parties to consult and cooperate with one another to resolve any problem and to make any request for clarification, which may have arisen in relation to the objective of, or in the application of, the provisions of the Convention”.  Disputes over the interpretation of this Treaty may indeed arise within the scope of its application. Therefore, a consultative meeting under Article V may be convened to provide a diplomatic solution to competitive interpretations between two or more States Parties. However, it is difficult to affirm that such option will be chosen by the parties of a dispute.

In the absence of clear mechanism for interpretation in the Biological Weapons Convention, States may indeed seek for clarifications in the general interpretation framework of International Law. The Vienna Convention on the Law of Treaties  does not provide a clear solution while establishing a certain preference for the priority of the respect of the letter at the expenses of the real will of the authors of the text . However, International jurisdictions regularly refer to the provisions of the Vienna Convention for interpretation . According to article 31 of the Vienna Convention on the Law of Treaties, “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” . In addition to this general principle, this article gives further indications for interpretation: “The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty”  as well as the examination of subsequent agreement, practice and “relevant rules of international law” . In addition to these elements, the Vienna Convention provides complementary solutions allowing for the interpretations of Treaty provisions: the examination of the preparatory work  and the recourse to other authenticated versions of the treaties in other languages . This framework may be used by International Courts and Tribunals such as the ICJ in the first place as well as international tribunals provided that States Parties to a dispute over interpretation consented to refer the matter to the Court.

Although numerous regional and international Courts and Tribunals as mentioned above are referring to the Vienna Convention on the Law of Treaties for interpretation purposes, this Convention is far from being universal. Only 116 States are indeed parties to the Convention . Among the 77 non-member states and signatory states are, among others, Brazil, France, India, Indonesia, South Africa, the United States… Consequently, the Vienna Convention is an essential framework for interpretation of international Treaties and Conventions such as the BWC. However, in the absence of a clear mechanism providing for interpretation in the biological disarmament regime, it is uncertain whether States Parties would refer to International Jurisdictions on their own initiatives to settle such dispute rather than establish their own interpretation of the Treaty.

The absence in the Biological Weapons Convention of a mechanism for interpretation and for settling disputes that may arise over interpretation of the Treaty is all the more problematic so as the existing provisions are relatively weak, such as Article V and VI that will be examined in the following sections.

3.1.3. Weaknesses of Article V

As developed in the Section 2.1.1 on existing mechanism in the BWC for dispute settlement, Article V of the Biological Weapons Convention provides for consultations and cooperation “in solving any problems which may arise in relation to the objective of, or in the application of the provisions of, the Convention” . Consultations under Article V are a mean of dispute settlement from the diplomatic category (with processes such as negotiations, good offices…). Such process was activated only twice in the history of the Convention. In 1997, Cuba convened a consultative meeting pursuant to Article V and very recently, in July 2022, the Russian Federation activated this mechanism. These two episodes will be further developed in sections 3.2.1 and 3.2.2. There is then no possibility to assess with certitude of the full efficiency of such mechanism. However, from a theoretical point of view, it is arguable that in many situations, Article V could not lead to a successful settlement of disputes.

To understand the eventual weaknesses of Article V, it is necessary to look back to the history of this mechanism. In the first draft of the BWC, concerns about biological weapons uses had to be shared with the UN Secretary General who was responsible for investigate and report to the Security Council . The final version of the Convention did not however entrust the Secretary General but the Security Council to launch eventual investigations. Such process would have given to the five permanent members of the UNSC the power to block any investigation tentative of their own activities . Then, F. LENTZOS explains that at the First Review Conference in 1980, Sweden proposed the establishment of a ‘Consultative Committee’ to remove the procedure of political consideration of a given situation from the Security Council . This proposal led to the adoption of a procedure allowing any State-Party to “request that a consultative meeting open to all States Parties be convened at expert level” . The consultative meeting under Article V is then a tentative to avoid a veto – leading to a form of impunity – at the Security Council by moving the political assessment of a situation to another instance with different procedures. This may explain why Cuba has chosen to convene a consultative meeting pursuant to Article V of the BWC rather than referring the matter to the UN Security Council (which would have very likely led to a veto from the United States).

The main weakness of Article V is not inherent to the provision itself, but rather to the mechanism it is enshrining. Consultations may indeed lead to successful outcomes as well as to blocked situations. For example, in the Dispute Settlement System of the World Trade Organisation (WTO DSS), consultations lead to a mutually agreed solution in 20% of cases . Although third parties (in essence, States non-involved in the dispute) may play a role of arbitrator in such procedures, they cannot impose a solution, interpretation of the facts or a procedure for dispute resolution to the parties. This mean of dispute settlement is then fully based on consensual efforts (and goodwill) of parties involved. In the absence of such will and efforts, the situation remains blocked.

Furthermore, M. I. CHEVRIER notes that there is no obligation to cooperate in Article V nor in the clarifications made in 1980 and 1986: “The Final Declaration agreements go a long way to clarify the vague language of Article V. Nevertheless, they do not satisfy the goals of many reformers. That an expectation to co-operate with an investigation is created does not mean that an obligation to co-operate is established” . The formula of the final documents of the two first Review Conferences in 1980 and 1986 is indeed not clear: “These procedures include, inter alia, the right of any State Party subsequently to request that a consultative meeting open to all States Parties be convened at expert level” ; “The Conference confirms the conclusion in the Final Declaration of the First Review Conference that these procedures include, inter alia, the right of any State Party to request that a consultative meeting open to all States Parties be convened at expert level.” . This formula let open for a State the possibility to not participate to a consultative meeting under Article V. Then, a State-Party accused to have breach the Convention may refuse to be present at a consultative meeting convened to discuss this precise breach allegation. These “accepted procedures”  are indeed fully integrated in the original spirit of the Convention as qualified by James LEONARD, American Negotiator on the Convention as a “gentleman’s agreement” . 

In 1997, the consultative option of Article V was used ‘successfully’  without however a clear outcome: the ‘verdict’  remains undetermined . Whether the two situations are not fully comparable because of the context, the countries involved, the 2022 situation and the activation of Article V by the Russian Federation in July 2022 may have a different outcome and lead to a blocked situation.

3.1.4. Blockage and impunity under Article VI

Second mechanism for dispute settlement in the Biological Weapons Convention, Article VI allows a Member State to lodge a complaint to the Security Council of the United Nations if it finds that another State Party to the BWC is breaching the Convention . Pursuant to this provision, States Parties “undertake to cooperate in carrying out any investigation which the Security Council may initiate” . This article is the only provision allowing a State Party to refer a matter related to the application of the Convention to an organ outside of the Biological Disarmament Regime. According to this Article, any State Party to the BWC may refer its compliance concerns towards another State to the Security Council. Following its own procedures, the UNSC may then launch an investigation and take appropriate measures to cease the breach and redress the situation. In the absence of a permanent verification mechanism ensuring compliance, Article VI and measures taken by the UN Security Council following a complaint lodged pursuant to this provision are the only mean to ensure compliance and enforce such measures against States reluctant to comply .

This mechanism was never used by any State Party to the BWC since its signature in 1972. In 1997, Cuba decided to convene a consultative meeting pursuant to Article V, so did the Russian Federation very recently in 2022. There is then no example of application of this article in the history of the Convention. However, it is possible to imagine certain limits of this mechanisms from the theoretical perspective. Already in 1971 during the negotiations of the BWC, numerous States were sceptical about the mechanism established by the future Article VI. As N. SIMS explains, this article was seen as too weak vis-à-vis powerful States and especially Permanent Members of the UN Security Council . In the seventies, the States suspected to conduct offensive biological programs were indeed permanent members of the Security Council. In this situation, such States accused by others to breach the provisions of the Convention would, in any event, have used its veto power to block any investigation or measures at the UNSC and, complaints would remain unresolved and facts unclarified . Despite certain attempts to modify the draft Article VI, the text was adopted and signed as we know it today with its inherent important weakness: the threat of the use of veto by a permanent member of the Security Council. The mechanism established by Article VI is indeed transposing the problem of the Security Council to the biological disarmament compliance regime. 

Because of this transposition, the theoretical application of Article VI would lead to two distinct situations with a large difference between them. In the first case where the State concerned by the allegations of breach of the BWC is a permanent member of the Security Council (or a closed ally to a permanent member), the complaint to the UNSC would result in a proposal for investigation that would immediately be blocked by the veto of the permanent member-State of the UNSC (or its close ally) resulting in the absence of fact-finding mission about the compliance concern and, inevitably, in the absence of measures aimed at ceasing the breach and redress it. In the second case where a non-permanent member of the Security Council (and without close links and relations to a permanent member) is accused of breaching the Biological Weapons Convention, the complaint of any State lodged to the UNSC may result in the launch of an investigation allowing to establish the precise statute of compliance of the concerned State and in the adoption of measures. From these two situations, there is a clear difference of possible outcomes: where States benefiting from their status of permanent member of the UNSC may not be held responsible for their behaviour and enjoy a full impunity, other countries may have to comply with investigations processes and measures that may be adopted following the results of such fact-finding missions. There is a clear inequality, which is not inherent to the BWC, but rather to the UN Charter establishing the USNC. Against this inequality and impunity, the General Assembly of the United Nations very recently adopted a Resolution aiming at holding the permanent members of the Security Council accountable for their use of veto . This Resolution requires the convenience of a formal meeting of the General Assembly following the use of veto by a permanent member of the UNSC. Despite this major step, the inequality at the UN Security Council makes the settlement of dispute really difficult in the context of the mechanism of Article VI.

Furthermore, although Article VI may be used as a settlement mechanism of disputes arising over compliance concerns, this provision cannot be used for interpretation purposes. Such possibility is indeed expressly excluded by the text: “Any State Party to this Convention which finds that any other State Party is acting in breach of obligations deriving from the provision of the Convention” . In the hypothesis where Article VI could be used for interpretation purposes, the assessment of the issue and the decision of the Security Council would obviously be far too political to reach a viable solution. Moreover, the same difficulties could arise: a State with permanent membership could use its veto to block an interpretation that would not be favourable to it or refuse the referral of the matter to the ICJ.

Although Article VI was never used by any Party to the Biological Weapons Convention since the signature of the Treaty in 1972, Article V was activated twice: in 1997 for the first time and very recently in 2022. Both of these two concrete examples did (or are very likely to) confirm the theoretical issues and weaknesses of the BWC developed in this section.

3.2. Concrete examples

The weaknesses of the Biological Weapons Convention, developed in the precedent sections have found an echo in practice. Indeed, while Article VI of the Convention has never been used, Article V has been used twice: in 1997 by Cuba (3.2.1) and in 2022 by the Russian Federation (3.2.2). These two examples show both the weakness of Article V and the lack of robust dispute settlement mechanisms. These episodes will be developed in the next two sections.

3.2.1. The 1997 incident

In the end of the Nineties, the relations between the United States and Cuba are electric. In this post-Cold-War time, the American embargo over Cuba is still in force and was reinforced in 1992 with the Cuban Democracy Act  and 1996 with the so-called Cuban Liberty and Democratic Solidarity Act  codifying the US embargo. A few days before, on 24 February 1996, the Cuban Army shot down two American civilian aircrafts . The relations were then tensed between the two countries.

On 21 October 1996, the Cuban Authorities constated the flight over the Cuban territory of a plane registered to the US Department of State departed from Florida heading to Grand Cayman. Less than two months after, a crop infestation by the insect named Thrips Palmi was detected on 18 December 1996. Cuba accused the United States of being responsible for the development of this infestation in two letters sent to the UN Secretary General in April  and June  1997. The note-verbale of April 1997 ends with the following conclusion: “The analysis of the facts and the results of the investigations allow us to relate, with a high degree of accuracy, the appearance of Thrips Palmi, in Matanzas Province with the dropping, on 21 October 1996, of an unknown substance by an aircraft operated by the United States State Department. There is reliable evidence that Cuba has once again been the target of biological aggression” .

On 30 June 1997, Cuba contacted the Russian Federation, depositary State of the Biological Weapons Convention, and requested the convenience of a consultative meeting pursuant to Article V of the BWC . At this time, the procedures applicable were those agreed by the Third and Fourth Review Conferences. The informal meeting of States Parties to the Convention took place on 31 July 1997 and were agreed various rules of procedures, time limits, the chair (the United Kingdom was chosen)… for the formal meeting which took place between 25 and 27 August 1997. 74 States Parties and 3 signatory States participated to the meeting . During the first session, “The meeting heard statements by the delegation of Cuba and the delegation of the United States, the texts of which were circulated to all States Parties participating in the meeting. Both delegations then made a further statement amplifying points raised in their formal statements” . The main point disputed between Cuba and the United States was the time and spatial coincidence or correlation  between the overflight of the American aircraft and the first infestation. It should be noted that the formal Consultative Meetings convened pursuant to Article V did not initiate appropriate international procedures nor requested specialized assistance in solving any problems that may arise as suggested by the Third Review Conference . The Bureau of the Formal Consultative Meeting, established during the first session, was responsible for the clarification and resolutions (in the extent possible) of the compliance concern. The Bureau, after having examined the observations of States Parties, remained divided between members exonerating the United States, members of the view that Cuba was victim of a biological aggression, and members considering that the situation was too complex with a limited number of elements to determine appropriate conclusions .

Eventually, the Bureau, with six members (Australia, Canada, Denmark, Germany, Hungary, Japan) against three (China, Viet Nam, North Korea) stated that the requirements of Article V on the obligation to consult and cooperate had been fulfilled by States Parties . China, Viet Nam and DPRK regretted that the consultations did not go further and that so little time had been allocated to resolving this dispute and called for further proceedings. Finally, the Bureau concluded that “there has been general agreement throughout the process that the requirements of Article V of the convention and of the consultative process established by the Third Review Conference have been fulfilled in an impartial and transparent manner”  without giving the final conclusion resolving the dispute . Although considered a success in its achievement, Cuba's activation of Article V only underlined, the need for a verification system for biological disarmament. As cited by N. SIMS, the Bureau indeed considered that “the experience of this use of these consultation mechanisms demonstrates the need for early agreement on a protocol to the Convention, which will establish an effective and permanent regime for dealing with any such issues and thereby strengthen compliance with the Convention” . This episode highlights the lack of such mechanism in the BWC. However, this incident also showed the need of clear agreed and established procedures for Article V and furthermore, a strong system ensuring the settlement of dispute arising over compliance. The Cuban activation of Article V and the procedure that followed showed various adjustments made by the Bureau during the ongoing process. A more advanced mechanism for the settlement of dispute would have led to a clear response to compliance concerns, without the need to discuss procedures and related issues.

Finally, in the alternative, this episode will have shown (or rather confirmed ) that, despite the fact that the BWC text does not cover or prohibit the use of biological weapons or agents for hostile purposes, the Convention is indeed one of the appropriate instruments to address compliance concerns. In addition, Article V has also been confirmed as a dispute settlement mechanism in cases of biological weapons use.

The so-called Thrips Palmi episode in 1996-1997 was, until very recently, the sole activation of Article V of the BWC. While the conclusion of this incident did not raise important contestations or criticisms, it is uncertain however whether the next activations of this mechanism will have the same accepted conclusion. In the first place, the outcome of the very recent activation of Article V by the Russian Federation following concerns of compliance by Ukraine and the United States, in a radically different geopolitical context, is uncertain. This situation will be further developed in the following section.

3.2.2. The 2022 situation: Russian allegations on Ukraine and the USA

On 9 March 2022, the Russian news agency TASS published an article about an alleged presence of biological weapons in American laboratories on the Ukrainian territory, citing the Russian Foreign Ministry spokeswoman Ms. Zakharova: “Bioweapon labs in Ukraine proves US criminal activity” . The same day, a press statement of N. Price, spokesperson of the US Department of State rejected these allegations: “This Russian disinformation is total nonsense and not the first time Russia has invented such false claims against another country” . On 11 March 2022, the UN High Representative for Disarmament Affairs expressly stated that “The United Nations is not aware of any biological weapons programme” . In February 2022, the Russian Federation invaded Ukraine. The ‘Special military intervention’ according to the Russian government , is internationally considered as an act of aggression (as defined by international law by the General Assembly Resolution 3314 (XXIX) of 14 December 1974 ): the Resolution A/RES/ES-11/1 adopted by the General Assembly recalled the definition of an aggression and “Deplore[d] in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2(4) of the Charter” . 

 In July 2022, the Russian Federation decided to activate Article V of the Biological Weapons Convention . It is the first time since the Thrips Palmi episode in 1997 and the second time since the signature of the Convention in 1972 that this special procedure is activated by a State-Party. During the formal meeting, which must take place no more than 60 days after the request to the depositary States of the Convention, the Russian Federation will attempt to demonstrate to the rest of the States-Parties that its documents proving the presence of bioweapons-developing biolabs are genuine despite numerous denials. As evoked before, the UN Office for Disarmament Affairs indeed informed the Security Council that the UN was unaware of any bioweapons programmes in Ukraine . In addition, numerous independent medias denied the Russian allegations  as well as experts . Furthermore, Ukraine and the United States submit regularly Confidence Building Measures (CBMs)  in the form of annual reports on the activities carried out, as agreed by States Parties during the Second Review Conference in 1986 .

With this background, it is difficult to see how the Article V consultation process could have a a positive and clear outcome. The dispute here concerns two permanent members of the Security Council, and the allegations of one supported by a few States are denied by the other and by neutral and independent bodies, supported by a large majority of States. Moreover, it is unlikely that Russia will allow independent experts access to Ukrainian territory, despite the Ukrainian government's agreement to have its laboratories inspected. At the end of this formal meeting, it is therefore highly unlikely that tensions will ease between the West and Russia, just as it is highly unlikely that light will be shed on the veracity of the Russian accusations. Indeed, Russia will probably maintain its allegations after the meeting, even though many States have already concluded that no biological weapons were developed in Ukrainian labs.

Moreover, F. LENTZOS and J. LITTLEWOOD emphasise the risks to the Convention itself as an instrument of biological disarmament as a result of this activation. The two researchers identify five risks to the BWC . First of all, Russia’s activation of Article V risks to undermine biosafety/biosecurity efforts undertook by Ukraine and divert attention from Russian actions. Secondly, the peaceful cooperation under Article X is threatened: the Biological Threat Reduction Program of the United States provides assistance to numerous labs around the world to detect and monitor diseases, considering that this program is breaching Article I of the BWC threatens the whole scientific cooperation between States. Third risk identified by F. LENTZOS and J. LITTLEWOOD, Russia’s “amplifiers”  (China for example) may take the activation of Article V as an opportunity to challenge the United States, its leadership and international policy. Indeed, such behaviour detracts from the very purpose of consultation in the context of biological disarmament, risking to weaken it. The fourth risk relates to an element developed earlier: if Cuba did not wish to go further in 1997 despite the absence of a 'verdict' at the end of the meeting, it is unlikely that the Russian Federation will do so in 2022, risking the very relevance and utility of Article V. Finally, the fifth and last threat identified by the two researchers is the hijacking of the discussions at the Ninth Review Conference to be held in November, by reducing the time and discussions devoted to compliance mechanisms in favour of discussions on Article V. In general, it is likely that the state of US-Russia relations will at best be the same as before the formal meeting, and at worst will be deteriorated as a result of the procedure. In any case, the status of these relations will weigh on the Review Conference and make the negotiations and discussions difficult.

In any case, this episode is very likely to weaken the Convention, to further postpone the possibility of discussions on a verification mechanism to ensure states' compliance with their obligations, and to make the possibility of establishing a robust dispute resolution mechanism very remote. Yet this episode shows that Article V is inadequate, too political to address compliance issues.  

Despite these difficulties and weaknesses, whether theoretical resulting from the text of the Convention itself or from the practice of the Convention, notably through the examples of 1997 and 2022, it is important to note that efforts have been made by States Parties to strengthen the Convention. These efforts will be analysed in the two following sections.

3.3. Attempts of solutions

 The weaknesses of the Convention, particularly in that it is not sufficiently monitored and control with binding procedures and systems, were at the heart of many negotiations between Member States. The latter, in order to correct these difficulties, have tried with more or less success to establish additional mechanisms. The first is the negotiation of a legally binding verification protocol, which turned out to be a failure (3.3.1), the second is the creation of Confidence Building Measures (CBMs) with mixed results (3.3.2). 

3.3.1. A verification Protocol tentative

The Biological Weapons Convention does not have any verification instrument or associated organisation unlike the Chemical Weapons Convention (CWC), or the Comprehensive Nuclear-Test-Ban Treaty (CTBT) as mentioned previously in sections 2.1.2 and 2.1.3. 

However, some efforts have been made in this direction. Eventually, despite long negotiations and a common will at the start, the discussions did not succeed and, to date, the BWC does not have such a mechanism ensuring verification of compliance. The question of verification has always been omnipresent in the various BWC conferences (Review Conferences, Meeting of States Parties, Meeting of Experts, Consultative Meeting under Article V, etc.). As soon as the treaty was negotiated in the 1950s and 1960s, some States insisted on the need for the presence of such a system to ensure the viability of the Convention and its relevance. Despite some reluctances , the Convention was signed in the absence of a verification system.

However, the desire to provide the text with such a mechanism has not faded away. Thus, from the First Review Conference in 1980, negotiations continued. During this meeting, Sweden proposed to amend Article V and VI to establish a Consultative Committee responsible for fact-finding inspections . The proposal was abandoned due to the strong opposition of the Soviet camp. During the Second Review Conference in 1986, States agreed to annually submit the so-called Confidence Building Measures exchanging in various areas with the objective to gain confidence and trust between States Parties  (CBMs will be further developed in section 3.3.2). During the Third Review Conference in 1991, States constated the lack of submission of CBMs as well as the continuing need to establish a verification mechanism. States then agreed to expand the scope of CBMs by adding four areas to the reports to be submitted by States. But, above all, this Conference was the beginning of a new start towards a verification protocol. Reluctant to adopt a verification protocol maintaining that biological disarmament is not verifiable , the United States agreed to a form of compromise, in essence the creation of a group of experts responsible for the examination of finding possible points of verification : this group is known as VEREX. This important step forward verification may be linked to the negotiations of the Chemical Weapons Convention conducted between 1991 and 1993 showing that States seemed less reluctant to accept an intrusive verification mechanism in the area of chemical weapons.

Once established, the VEREX group examined and proposed twenty-one verification measures both on-site and off-site. In 1994, a special meeting of States Parties was convened to discuss the conclusions of the group of experts. During this Conference, discussions led to the establishment of a new ad-hoc working group responsible for the drafting of proposals for the creation of a legally binding instrument  in four different areas: the definition of terms and objective criteria, confidence-building and transparency measures, measures to promote compliance and measures to implement Article X of the BWC . However, the main issue of biological disarmament verification is that materials, equipment could be dual-used (meaning they can serve for both peaceful and hostile purposes) and verifying compliance to the BWC is indeed very difficult. As analysed by M. I. CHEVRIER, the Ad-Hoc Group established in 1994 focused on “strengthening the Convention rather than verifying it” , this reinforcement was examined through the enhancement of exchange of information on State’s compliance in a legally-binding instrument.

Several elements have emerged from the VEREX group’s work. First of all, the experts established that the declarations of the States on their activities, used in conjunction with inspections could considerably strengthen the treaty . Certain experts of the VEREX group also suggested that the protocol should include non-challenge on-site visits to establishments declared by States to ensure declarations’ accuracy and reduce the number of challenge inspections. By establishing such non-challenge on-site inspections, the verification regime of the Biological Weapons Convention would not be weaker than the one contained in the Chemical Weapons Convention . While the VEREX report suggested the possibility to request challenge inspections, the experts however disagreed on the modalities: who can request such investigation? Which procedures are applicable? Which limits and restrictions should be established? In addition to the verification of the core obligations of the BWC (namely the prohibition of the development, production, stockpiling, acquire, retain biological or toxin weapons), certain VEREX experts suggested that Article III and X compliance should also be verified. In parallel to the BWC, twenty-nine (western) countries gathered in the so-called Australia Group agreed in 1985 to coordinate their export measures to avoid the proliferation of biological and chemical weapons. While States targeted by the Australia Group’s export restrictions want the abolition of these measures, the members of the group invoke the fight against proliferation and the Iraq example to justify them . On Article X, developed States were reluctant to be required to help certain countries and would prefer to keep the discretional choice of their assistance programs and developing States wished that assistance provision become systematic and mandatory pursuant to Article X.

The draft protocol  was presented in March 2001. On 25 July 2001, the United States strongly rejected the draft protocol  and the concept of verification . This opposition is the direct consequence of the inauguration of G. W. Bush administration . The US government had indeed concerns about the protection of national security information related to biodefense programs . 

Since 2001, calls for the adoption of a verification protocol are still present. In a completely different context, with certain compliance challenges and concerns, the development of the bioterrorist threat, the Covid-19 pandemic, the need of such inspection system is clearly urgent. During the Preparatory Committee to the Ninth Review Conference, numerous States expressed this need and their wish to discuss and negotiate the development of a legally binding instrument during the Ninth Review Conference. This Conference that will be conducted in November 2022, may see the establishment of a VEREX 2.0 as suggested by J. REVILL, J. BORRIE and R. LENNANE from the UN Institute for Disarmament Research (UNIDIR) . 

In any case, the resolution of disputes over compliance necessarily needs a fact-finding mechanism to be efficient and relevant. The best option to reinforce the dispute settlement regime of the BWC, is without any doubt the establishment of a permanent system of verification, ensuring to have updated information of activities and establishments of States, information challenged and verified through inspections. A verification protocol would therefore imply a reduction of the number of disputes because of the increase of trust and confidence among States and the direct monitoring of compliance issues by an independent organisation, thus bypassing any escalation of tensions between States. A legally-binding instrument ensuring verification would also ensure a better resolution of disputes arising between States: with prior-established procedures for verification and fact-finding missions, the veracity of compliance concerns would be easily and rapidly established.   

While the establishment of a verification protocol was a failure, another effort conducted by States Parties to the Biological led to (relatively) positive outcomes. The requirements to submit Confidence Building Measures (CBMs), derived from Article V was indeed successful in its adoption, but uncertain in its practice. The CBMs will be further developed in the following section.

3.3.2. Confidence Building Measures (CBMs)

The Confidence Building Measures were agreed in 1986 during the Second Review Conference, attaching to Article(s) V (and X) a new measure designed to ensure compliance and transparency. Confidence Building Measures (or CBMs) are a voluntary transparency mechanism designed to build trust and confidence among States Parties: “The Conference believes that such voluntary declarations contribute to increased confidence in the Convention and believes that States not having made such voluntary declarations should do so” . F. LENTZOS analyses that CBMs’ adoption by States Parties followed the suspicious anthrax outbreak as well as the American allegations of the use of toxins in Afghanistan in 1981 . At the beginning, the CBMs were adopted on a temporary basis “to prevent or reduce the occurrence of ambiguities, doubts and suspicions, and in order to improve international cooperation in the field of peaceful bacteriological activities” . One of the objectives targeted by the Review Conference was to indeed reduce the risk of the occurence of disputes arising over compliance in the context of the Convention. By providing a mechanism enabling States Parties to be transparent between them, the Convention was reinforced. In 2001, when the verification protocol efforts collapsed, the Confidence Building Measures became in spite of itself a real consolation prize for the biological disarmament system. 

The areas covered by the CBMs were developed in two steps. The first one, in 1986 during the Second Review Conference, identified the following points: 

• “1. Exchange of data, including name, location, scope and general description of activities, on research centres and laboratories that meet very high national or international safety standards established for handling, for permitted purposes, biological materials that pose a high individual and community risk or specialize in permitted biological activities directly related to the Convention.
• 2. Exchange of information on all outbreaks of infectious diseases and similar occurrences caused by toxins that seem to deviate from the normal pattern as regards type, development, place, or time of occurrence. If possible, the information provided would include, as soon as it is available, data on the type of disease, approximate area affected, and number of cases.
• 3. Encouragement of publication of results of biological research directly related to the Convention, in scientific journals generally available to States Parties, as well as promotion of use for permitted purposes of knowledge gained in this research.
• 4. Active promotion of contacts between scientists engaged in biological research directly related to the Convention, including exchanges for joint research on a mutually agreed basis.”

The second step was the adoption of new CBMs during the Third Review Conference in 1991 which organized all the measures in seven categories and a questionnaire replaced the previous form, making the submission of CBM report easier. Since 1991, the CBMs are now the following: 

• “A:  PART 1: Exchange of data on research centres and laboratories
  PART 2: Exchange of information on national biological defence research and development programmes
• B: Exchange of information on outbreaks of infectious diseases and similar occurrences caused by toxins
• C: Encouragement of publications of results and promotion of use of knowledge
• D: Active promotion of contacts
• E: Declaration of legislation, regulations and other measures
• F: Declaration of past activities in offensive and/or defensive biological research and development programmes
• G: Declaration of vaccine production facilities”

The content of the Confidence Building Measures, as agreed by the Third Review Conference, covers the large majority of the areas targeted by the declarations provisions of the draft verification protocol . The CBMs is then a form of mutual surveillance of legislation  between States Parties. In theory, therefore, CBMs can significantly reduce the occurrence of disputes between States by allowing them to verify any doubts they may have about other Countries’ compliance with the Convention. In this way, CBMs would act as a system to avoid any escalation of tensions.  

However, Confidence Building Measures suffer from a number of limitations that tend to make them less effective in their role as confidence builders. First of all, CBMs are submitted by States on a voluntary basis and are not part of a binding legal instrument that would oblige them to comply with it. Secondly, it appears that States are experiencing technical difficulties in submitting CBM reports. The direct consequence of these two reasons is that few CBMs have been submitted since the Second Review Conference. The database of submitted reports shows a peak of submission in 2021 with 92 States (out of 183 members in that year), which represents just over 50% of the total of States Parties . This database shows also that the majority of States that have never submitted CBMs are on the African continent  and are also among the least developed of the world. Despite efforts conducted by the BWC Implementation Support Unit (ISU)  and the European Union (a guide to participating in the CBMs of the  BWC  has been funded by the European Union as part of the EU’s 2009-2011 Joint Action  and 2012-2014 Council Decision in the support of the BWC ) to reinforce the capacity of these States to submit CBMs. The third main limit of the CBMs is directly linked to their non-binding nature and their absence of control. Because of the essence of the CBMs (no challenge inspections, CBM submission is not monitored), there is no control of the veracity of the information contained in CBMs. States may indeed deform the factual situation in the reports in a manner that they would reflect a false compliance-situation. In the same way, States may easily and voluntarily neglect to mention certain activities that may be conducted in violation of the BWC. Finally, as mentioned before, only States are assessing the veracity of the CBMs submitted by other countries, the interpretation of the CBMs reports is inevitably political. This is an important threat to the inherent objective of CBMs: as States are the sole entities of interpreting other States’ CBM through a highly political assessment, their interpretation is likely to be biased by other factors than the pure evaluation of the factual situation such as their bilateral relations in other circumstances. These elements make the building of trust and confidence between States very fragile as this trust relies on political interpretation of voluntary reports of countries enjoying a wide flexibility in fulfilling (or not) the CBMs requirement.  

The Confidence Building Measures are, with the attempts to adopt a legally binding verification protocol, an example of efforts conducted in the context of the BWC to reinforce the Convention. Although it is possible to import certain solutions from other WMD disarmament regimes as mentioned in previous sections (such as verification systems and dispute settlement mechanisms from the CWC or the CTBT), one can imagine finding solutions from beyond disarmament regimes. Such eventuality will be developed in the following sections.

4. Solutions from beyond WMD disarmament regimes 

Although non-biological disarmament regimes such as the NPT, the CTBT, the CWC may pro vide for solutions in matters of dispute settlement systems, non-disarmament instruments and judicial organs may also become a source of inspiration for settling dispute within the biological disarmament regime. This section aims at developing the dispute settlement systems of certain non-disarmament instruments (4.1) as well as the option of the judicial settlement of disputes (4.2).

4.1. Solutions from non-disarmament regimes

Other international instruments dealing with other issues than disarmament sometimes provide for a dispute settlement system. Certain instruments contain specific and originals mechanisms that might be of interest for enhancing the BWC. This section will develop the mechanisms for the settlement of disputes in the Aarhus Convention (4.1.1), the International Health Regulations (IHR) (4.1.2), the UN Sanction Regime (4.1.3), and the World Trade Organisation Dispute Settlement System (WTO DSS) (4.1.4).

4.1.1. The Aarhus Convention and environmental litigation

The United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters  (in short, the Aarhus Convention) was signed on 25 June 1998 in Aarhus (Denmark) and aims at safeguarding the right of individuals to “live in an environment adequate to his or her health and well-being”  through the protection of the rights to access to information, to participate in decision-making processes and to access to justice in environmental matters. In this regard, the Aarhus Convention is an innovative instrument directly protecting Human Rights related to the environment. As of 2022, 47 States are party to the Aarhus Convention. In a similar manner of Treaties of its generation, the Aarhus Convention has integrated mechanisms ensuring compliance and a system for the settlement of disputes that may arise over interpretation and compliance. The originality of this text also lies in its compliance and dispute settlement mechanisms.

The legal basis ensuring compliance of States Parties to the provisions of the text is Article 15 of the Convention according to which the Meeting of the Parties (MoP) shall establish optional arrangements to review compliance: “The Meeting of the Parties shall establish, on a consensus basis, optional arrangements of a non-confrontational, non-judicial and consultative nature for reviewing compliance with the provisions of this Convention. These arrangements shall allow for appropriate public involvement and may include the option of considering communications from members of the public on matters related to this Convention.” . Pursuant to this Article, the MoP established in 2002 the Compliance Committee  responsible for addressing non-compliance cases . The Compliance Committee is composed of eight members, nationals of States Parties to the Convention elected by the Committee on the basis of nominations made by Member-States. As defined in 2002, the role of the Committee is to:

• “Consider any submission, referral or communication […];
• Prepare, at the request of the Meeting of the Parties, a report on compliance with or implementation of the provisions of the Convention; and
• Monitor, assess and facilitate the implementation of and compliance with the reporting requirements […]”  

The Compliance Committee’s first role is therefore to assess compliance following the reception of any concerns from States Parties, Secretariat and even the public. 

In addition, the Committee is empowered to “provide advice and facilitate assistance to individual Parties regarding the implementation of the Convention”. Here, the Committee’s task is not to redress situations of non-compliance through coercive measures, but to collaborate and assists the State concerned to recover compliance. It is finally the Meeting of Parties which is responsible for the endorsement by consensus of the Compliance Committee’s findings . In addition to the soft and constructive roles of the Compliance Committee, the main innovation of the Convention is the power given to the Public without too strong restrictions that would have discouraged or made impossible any public trigger. Pursuant to decision 1/7 of the First Meeting of the Parties to the Convention, “communications may be brought before the Committee by one or more members of the public concerning [a] Party’s compliance with the Convention” . As of July 2022, 191 communications from the Public have been received by the Compliance Committee , demonstrating a clear accessibility to the instrument.

In the situation where non-compliance has been established by the Compliance Committee, the latter has the choice between the following options . The Compliance Committee may directly deliver recommendations to the State-Party concerned, refer the matter to the Meeting of the Parties (MoP) for consideration, review the concerned State’s implementation of the decisions of the MoP on compliance, report to the MoP on the implementation of its decision on compliance and finally issue a caution “in exceptional circumstances” . The Aarhus Convention’s mechanism ensuring compliance is therefore accessible to a wide range of actors (from the public to States Parties including the Secretariat) and may result in a large scale of measures from the softer one (recommendations) to the harder (issuance of a caution). 

However, this compliance mechanism does not interfere with the dispute settlement mechanism enshrined in Article 16 of the Aarhus Convention: “The present compliance procedure shall be without prejudice to article 16 of the Convention on the settlement of disputes” . In the hypothesis where disputes arise over compliance despite the system ensuring compliance developed above, or where disputes arise over interpretation, Article 16 of the Convention may be activated by States Parties. Divided in three paragraphs, this Article provides for three means of settlement of disputes that may arise “about the interpretation or application of this Convention” : “1. […] Parties […] shall seek a solution by negotiation or by any other means of dispute settlement acceptable to the parties to the dispute.  2. […] A Party may declare […] that, for a dispute not resolved in accordance with paragraph 1 above, it accepts one or both of the following means of dispute settlement as compulsory in relation to any Party accepting the same obligation: (a) submission of the dispute to the International Court of Justice; (b) Arbitration in accordance with the procedure set out in Annex II.  3. If the Parties to the dispute have accepted both means of dispute settlement referred to in paragraph 2 above, the dispute may be submitted only to the International Court of Justice, unless the parties agree otherwise.” .

Paragraph 1, like numerous Treaties, suggests the solution of negotiations to settle the dispute or to use any other mean of the Parties’ choice. Although paragraph 1 is more common than innovative, the solution provided for in paragraphs 2 and 3 is more interesting. Article 16 indeed gives the possibility to States Parties to accept a solution between two proposals prior to the apparition of a dispute. These possibilities are the referral to the ICJ and/or the recourse to the integrated system of Arbitration . In the event where all the Parties to the dispute have accepted both means of dispute, the matter shall be referred to the ICJ only (or to the Arbitration system if all the Parties to the dispute agree to do so). The mechanism ensuring a choice of the mean of dispute settlement prior to the occurrence of the dispute allows to reduce the risk of a second dispute over how to settle the first dispute. This system then leads the Parties smoothly towards the resolution of the dispute, through the mechanism previously agreed by the Parties or following the result of the combination of the selected options.

The innovative solutions for compliance and dispute settlement may be transposed to WMD regimes, including the Biological Weapons Convention, lacking such systems however with certain reservations. The history of the developments of the BWC showed that the adoption of a legally binding mechanism for verification is an objective very difficult to reach. In this context, a softer mechanism ensuring compliance inspired from the Aarhus system may be a compromise solution. The Aarhus Convention’s Compliance Committee is indeed not an independent, separated organization like the CTBTO or the OPCW, but the emanation of the reunion of States Parties, despite the autonomy it is enjoying. Furthermore, the measures it may take to redress non-compliance situation are also softer than those provided in the CWC or the CTBT as developed above. However, the transposition of the Aarhus system into the BWC regime may face one major problem related to compliance assessment. It is indeed very unlikely that a State Party accused of non-compliance would join the consensus necessary to establish a compliance-assessment organ and then endorse the finding of this entity. In any case, the original role given to the public may be a strong asset to the compliance regime of WMD regimes and especially of the BWC. In a context where non-States actors such as terrorist groups are increasingly becoming important threats because of the accessibility of bioagents and related technologies due to the context of dual-use applications of research, public participation in the compliance regime may be game-changing. Individuals and groups from the civil society may indeed raise concerns over the compliance status of certain States to denounce the lack of measures implementing the Convention for example.

The Aarhus Convention mechanism for dispute settlement is indeed original and modern with the important role reserved at public participation. In addition to environmental instrument and their associated dispute settlement system, the following section will examine the dispute settlement mechanism of the International Health Regulations.

4.1.2. The International Health Regulations (IHR) 

Adopted during the World Health Assembly of 1969, the International Health Regulations  (in short IHR) are the result of the revision of the former International Sanitary Regulations adopted in 1951 . The Regulations were successively amended in 1973, 1981, 1995. During the World Health Assembly of 2005, States Parties to the World Health Organization (WHO) adopted the new International Health Regulations , which entered in force in 2007. The IHR are a health instrument, legally binding on 196 countries, designed to “prevent, protect against, control and provide a public health response to the international spread of disease” . 

Pursuant to these Regulations, States Parties are required to develop certain public health capacities with minimum standards in order to prevent, detect and respond to a wide range of health threats . In addition, States are expressly required to notify to the WHO any event constituting a public health emergency of international concern : “Each State Party shall notify WHO, by the most efficient means of communication available, by way of the National IHR Focal Point, and within 24 hours of assessment of public health information, of all events which may constitute a public health emergency of international concern within its territory in accordance with the decision instrument” .

Certain obligations, such as the development of the national public health system may constitute an important financial burden upon States which simply did not manage to comply with the requirements of the IHR . In 2012, analysts found that only 42 of the 192 World Health Assembly States Parties fulfilled their obligations . Furthermore, the Joint External Evaluations (JEE) conducted by the WHO to assess the state of national implementation of the IHR in each State Party shows important difficulties of developing countries to comply with IHR obligations . The notification obligation of Article 6 also led to a relative compliance . To avoid important non-compliance situations regarding to certain States, the International Health Regulations are providing for a quite regular dispute settlement system, but still relevant for the BWC.

In the absence of a mechanism specifically designed at ensuring compliance to the International Health Regulations in the text, the sole mean available in the IHR to ensure a certain level of enforcement is the dispute settlement system enshrined in Article 56 . Divided in 4 paragraphs, this article gives certain solutions ensuring the settlement of disputes that may arise between States and between the WHO and one or more States Parties. For disputes between States Parties, the IHR first classically requires the countries concerned to resolve the situation “through negotiation or any other peaceful means of their own choice, including good offices, mediation or conciliation” . If this option fails, Article 56 paragraph 2 suggests that States Parties “may agree to refer the dispute to the Director-General who shall make every effort to settle it” . As underlined by S. J. HOFFMAN, this option is strictly optional , and, in the situation where this option is agreed between involved countries, it is however not clear what steps may take the Director-General that would be different of those provided in the first paragraph. In its third paragraph, Article 56 provides for the optional solution of arbitration. In the hypothesis where all concerned States Parties have accepted the compulsory arbitration, this arbitration shall be conducted and shall follow the rules of the Permanent Court of Arbitration  (PCA) for arbitration between two States . Finally, the fourth paragraph recalls the right of States concerned by the dispute to refer to “any international agreement to which they may be parties to resort to the dispute settlement mechanisms of other intergovernmental organizations or established under any international agreement” . It appears that Article 56 provides for numerous (mainly optional) dispute settlement mechanisms between two or more States. However, if the dispute arises between the WHO and one or more States, the only option for resolution is the reference to the World Health Assembly , S. J. HOFFMAN analyses this solution as “a majority rule system that prioritizes politics and national self-interest over legal and scientific considerations” .

Although it presents several limits, the compliance system and dispute settlement mechanism of the IHR is of interest for WMD disarmament regimes because the nature of the obligations presents many similar points with public health requirements : both oblige States to improve their national legislation and capacities following certain standards. It is then possible to imagine transposing certain part of the compliance and dispute settlement mechanisms from the IHR to WMD instruments. As for the Biological Weapons Convention regime, the dispute settlement system over compliance (and interpretation) may be improved on the basis of the arbitration system provided by the IHR. Indeed, such a system of prior recognition of jurisdiction of an arbitral tribunal (or of rules in general) would considerably reduce the time needed to resolve a dispute by limiting the possible choices for reaching a settlement.

Both the Aarhus Convention and the International Health Regulations are independent mechanisms with specific dispute settlement systems that may be of interest for strengthening the Biological Weapons Convention. Another system might be useful for such development and is not directly related to a Treaty: the UN Sanction Regime, implemented by the UN Security Council. This system will be developed and examined in the following section. 

4.1.3. The UN Sanctions Regimes

UN Sanction Regimes are legal measures taken by the United Nations Security Council against States or non-States actors reluctant to comply with their fundamental international obligations. They essentially take the form of travel bans, asset freezes and arms embargoes . These arms embargoes established within the scope of these sanction regimes are designed to stop (or at least reduce) the flow of conventional weapons transfer towards the States or the non-State actor targeted by the sanctions . The first sanction regime was adopted in 1968 by the UN Security Council following the white supremacist coup in Southern Rhodesia . As to in 2022, the Security Council established 30 sanctions regime, 14 are still in force . The efficiency the adoption of such measures against States and non-States actors in uncertain and widely debated between experts and States. According to T. J. BIERSTEKER, S. E. ECKERT and M. TOURINHO, the sanctions have been efficient in only 10% of cases .

The UN Sanctions Regimes are governed and implemented by an interesting and original institutional structure. When adopting sanctions regimes, the Security Council establishes Sanctions Committees composed of all members of the Security Council. The sanctions committees are the main implementing organ of the sanction regimes. It regularly happens that in addition, is established a Panel of Expert (PoE) supporting and advising the sanction committee in the implementation of the measures. These panels are qualified by the UN General Assembly as the Council’s “eyes and ears on the ground” . As underlined by UNIDIR, panels of experts are usually composed of 12 or less independent experts, responsible for the collection of information relevant for the implementation of the sanctions, by reporting to the Sanctions Committee . However, the role and the impact of the work of panels of experts is often underestimated. Although certain reports of PoEs are rejected by the UNSC, others have directly resulted in the adoption of key measures for certain Sanctions Regimes . Modern innovation of the Sanctions Regimes, the Joint Verification Teams (JVT) was first established in 2014 within the scope of the Sanctions Regime for Somalia. The role of the Joint Verification Team is to conduct verification tasks to assess whether the State or non-State actor against which sanctions were established to ensure the lifting or suspension of arms embargoes does not result in the diversion of weapons. In the context of the Somalian Sanction Regime, the JVT mandate was to “conduct routine inspections of government security forces’ stockpiles, inventory records and the supply chain of weapons” . Although verification regimes in the area of arms control are not original, the innovation is the structure of these Joint Verification Teams and their composition. The JVT is indeed not only composed of independent experts but also of members of the government/non-State actor entity targeted. In the Somalian example, the JVT is formed by members of the Somalian Security Forces in addition to independent experts . The purpose of this composition is to enhance the responsibility of the government and build trust between the Security Council on one side, and the non-compliant government or actor on the other side. This innovation illustrates the change of paradigm between the firsts sanction regimes established at the end of the sixties which were only repressive and coercive, towards more constructive regimes.

Compliance to Weapons of Mass Destruction disarmament regimes could be enhanced by transposing and adopting certain mechanisms from the UN Sanctions Regimes, or at least following its spirit. The UNIDIR research paper notes that “The experience with the JVT shows how changing political contexts can facilitate the establishment of cooperative accountability mechanisms for supply chain security” . Indeed, moving from coercive compliance mechanisms towards more constructive regimes may have various advantages. First, in the absence of an efficient compliance regime, as this is the case for the BWC, the acceptation of a verification regime could be easier if this system is not based on an external verification but rather on a cooperative verification. Secondly, when adopted, such innovative mechanisms may enhance trust and confidence between States Parties and between States Parties and the Organization. Third, constructive and cooperative verification regimes involving members of the government may contribute to the training of the latter which may be an important factor of adhesion of less developed and developing countries. Fourth, the accuracy of the information and elements gathered during verification processes may be enhanced because of a reduction of the reluctance of States to be transparent as well as limiting the political defiance of States vis-à-vis these verification missions. All of these advantages may have for common result a clear improvement of compliance to international obligations. The WMD regimes, and the BWC in the first place may find in the UN Sanctions Regimes compliance system relevant elements for the establishment or improvement of new or existing compliance regimes. Finally, as developed above, by improving compliance, the occurrence of disputes between States or between States Parties and the Organisation may be limited.

Fully integrated within the UN system, the UN Sanction Regime plays a central role of peace safeguarding and conflict prevention. The non-controlled trade of weapons is indeed a major threat to global peace and security. The international organisation responsible for the regulation of the global trade, the World Trade Organisation or WTO also specifically designed a dispute settlement system. This system will be further exposed in the following section.

4.1.4. The WTO Dispute Settlement System

The World Trade Organization (WTO) established an original and unique system for the settlement of disputes that may arise between States in the context of the application of international trade agreements. This system appears to be truly innovative and might be considered for the improvement of disarmament regimes. This mechanism is called the Dispute Settlement System (hereafter DSS). This whole system was adopted in 1994 during the so-called Uruguay Round and is governed by the Annex 2  to the Agreement Establishing the World Trade Organization .  

The originality and innovative nature of the WTO DSS is based above all on its fundamental characteristics. Thus, the mechanism is compulsory  (in other words, membership to the WTO implies acceptance of jurisdiction of the DSS), it is also exclusive  (meaning that Member States are obliged to submit disputes arising on the application or interpretation of obligations under WTO treaties and instruments to the DSS). The range of international instruments covered by the dispute settlement mechanism is wide and includes among others, in addition to the WTO Agreement, the General Agreement on Tariffs and Trade (GATT), the General Agreement on Trade in Services (GATS). Although, like all international treaties and legal instruments, the objective of the WTO DSS is to preserve peace, to avoid the transposition of a peaceful dispute into an armed conflict in the worst case. Another objective is explicitly stated in the Understanding on Rules and Procedures Governing the Settlement of Disputes: “The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system” .

The DSS does not refer to a unique mean of resolution it provides for a step-by-step system from the bilateral setting to the involvement of third actors. Indeed, consultations are mandatory before going any further within 60 days . In the case where the resolution fails  within this delay, the complaining party may request the establishment of a panel . It appears that almost half of the cases are resolved at this stage . However, when the consultations step fails to conduct to a positive outcome, a panel may be established by the Dispute Settlement Body (DSB), responsible for the administration of the DSS . A panel is an ad-hoc system (usually) composed of three experts  responsible for hearing the case and adjudicate on it. The decision is given in the form of a panel report, establishing or not that the measures taken by the defendant State are in conformity with international instruments . Within a delay of 60 days after the communication of the panel report, a Party to the dispute may form an appeal against this decision. In this case, the execution of the latter is suspended: “If a party has notified its decision to appeal, the report by the panel shall not be considered for adoption by the DSB until after completion of the appeal” . The requests for appeal shall be submitted to the Appellate Body, a standing court established by the DSB ruling on panel reports. The Appellate Body is composed of seven members , appointed by the DSB (emanation of the WTO Council) by consensus . At the appeal stage, only “issues of law covered in the panel report and legal interpretations developed by the panel” may be reviewed . The decision taken by the Appellate Body in the Appellate Body Report is final and shall be “unconditionally accepted by the parties to the dispute unless the DSB decides by consensus not to adopt toe Appellate Body report” . Following the adoption of the report, measures taken by a State that are ruled inconsistent with the agreement concerned, shall be withdrawn. The report (from the panel of from the Appellate Body) may also provide for compensation measures and retaliation (in other words, the suspensions of concessions) for redress purposes only: “The level of the suspension of concessions or other obligations authorized by the DSB shall be equivalent to the level of nullification or impairment” .

In addition, the WTO DSS provides for alternative solutions for dispute settlement: good offices, conciliation, and mediation which are “undertaken voluntarily if the parties to the dispute so agree” . The main additional mechanism is arbitration, allowing States parties to a dispute to have a greater autonomy on the settings of procedure and the decision resulting of the arbitration process is binding only over States parties to the dispute.

It is then clear that the Dispute Settlement System of the WTO is a very sophisticated mechanism ensuring dispute settlement with a view of limiting the economic impacts of disputes. It appears that the system is also fast: the average speed of panel proceedings is 16 months and Appellate Body proceedings should last in theory no more than 90 days . To avoid a form of dominance by developed and powerful countries, the WTO established a system of legal assistance: the Secretariat of the WTO may assist Member States in “providing additional legal advice and assistance in respect of dispute settlement to developing country Members. To this end, the Secretariat shall make available a qualified legal expert from the WTO technical cooperation services to any developing country Member which so request” .

However, although in theory this system seems very sophisticated, functional and until recently had excellent results, the DSS has a major flaw, which has led to it being almost completely blocked. As developed above, the appointment of new members of the Appellate Body is conducted by consensus, in other words, each State Party has a veto right and may block the appointment of one or more new members. The United States since 2017 are systematically opposed to the appointment of new members of the Appellate Body  leading to a permanent reduction in the number of members, until the last member's term of office ended in 2020 . The Appellate Body can therefore no longer function at all. But the problem does not end there: as explained earlier, when a State appeals against a panel report, the decision cannot be executed before the Appellate Body's ruling, in other words, the panel report is suspended. As a result, since the Appellate Body no longer functions, numerous appeal requests accumulate and, with them, as many unexecuted panel reports. This blockage results in the inefficiency and uselessness of the entire dispute settlement system: indeed, when a party to a dispute is not satisfied with the decision of a panel, that party can simply render that decision unenforceable by lodging an appeal that will never be examined in the absence of an Appellate Body.

However, despite this limitation, which must urgently lead to a reform of the system, not all of the DSS is to be discarded and can even serve as an inspiration for disarmament regimes and in particular for the BWC. Indeed, the DSS remains an effective system, with the vast majority of states complying with its decisions . The creation of a dispute settlement mechanism in WMD disarmament regimes must be complementary to an independent organisation such as the OPCW or the CTBTO. Such a sophisticated and effective mechanism (which must of course learn the lessons of the WTO Appellate Body crisis), could have many advantages. Indeed, an integrated system such as the WTO DSS would make dispute settlement quicker, easier, more equal and more efficient, while ensuring that the expertise of the panel/body members is available. In addition, the possibility for States to appeal the first instance decision could lead to a decrease in the reluctance of countries to use these systems. However, it is necessary to stress that the interests of States in relation to international trade are quite different from those in relation to disarmament. Where a State Party to an international trade dispute will seek a speedy and predictable resolution, this will not necessarily be the case in disarmament. Indeed, States are reluctant to lose too much control and autonomy over their national security . In any case, disarmament regimes would benefit from the creation of such a dispute resolution system. The BWC, which lacks an independent verification and implementation organisation and an effective dispute resolution mechanism, could go a long way towards filling this gap by adopting such a system (or at least drawing on it).

As developed in this section, International Conventions and Treaties such as the Aarhus Convention, Mechanisms such as the UN Sanctions Regime, Organisations like the WTO have designed and developed their own dispute settlement regimes and systems of different nature, with their own advantages and drawbacks. These mechanisms might be of interest to enhance the BWC dispute settlement system. Furthermore, solutions for dispute settlement in the biological disarmament regime may be found with Courts and Tribunals at multiple levels. The following section will address the judicial settlement of dispute and its interest for disarmament treaties and especially for the Biological Weapons Convention. 

4.2. Solutions from permanent multi-disciplinary Courts and Tribunals 

International Law offers numerous options for dispute settlement, reparation of international wrongful acts, and crimes. One of the most efficient solutions is the judicial settlement of disputes before Courts and Tribunals. Such jurisdictions may be international or national and designed to held accountable States or individuals for their acts. The judicial settlement of dispute will be addressed in this section as solution for dispute settlement in the biological disarmament regime: before the International Court of Justice (4.2.1), before the International Criminal Court (4.2.2), arbitration before the Permanent Court of Arbitration (4.2.3) and before national criminal or penal jurisdictions (4.2.4).

4.2.1. Adjudication before the International Court of Justice

Created in 1945 by the San Francisco Conference when was adopted the Charter of the United Nations, the International Court of Justice (hereafter ICJ) is integrated in the UN system by the Charter in its Chapter XIV. The ICJ “Shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter” . The Court was founded on the basis of the former Permanent Court of International Justice (PCIJ), created in 1919 by the Covenant of the League of Nations in its Article 14: “The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give advisory opinion upon any dispute or question referred to it by the Council or by the Assembly” . Dislocated with the League of Nations, the PCIJ was formally replaced by the ICJ in 1946.

Although most of the competence, composition, procedure rules are developed in the ICJ Statute annexed to the UN Charter, the latter provides certain characteristics: the Court has a universal competence (all UN Member States are ipso facto members of the ICJ) , the judgements of the Court are binding upon States Parties to the dispute and the UN Security Council is responsible for the enforcement of such judgements , the UN General Assembly and the UN Security Council may request an advisory opinion to the Court, as well as other UN bodies under certain conditions .  Although numerous Treaties and Conventions, even in the field of disarmament provide for the referral to the International Court of Justice as a peaceful mean for the peaceful settlement of disputes over compliance and/or interpretation , the text of the Biological Weapons Convention does not provide for such option. However, this absence does not exclude the jurisdiction of the ICJ. One of the particular characteristics of the Court is indeed its wide jurisdiction  and the various basis this jurisdiction has . Following certain of these bases, the ICJ may have jurisdiction over disputes arising over the application or interpretation of the Biological Weapons Convention. Only three bases will be developed here as legal framework for the jurisdiction of the ICJ over disputes in the context of the BWC . The first option is the most common and has certain similarities with arbitration: when two or more parties to a dispute agree to refer the case to the Court, the Court should normally have jurisdiction over the case referred following the so-called special agreement  concluded between the parties. This option is governed by Article 36(1) of the Statute of the Court: “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force” . Pursuant to this article, when a dispute arises between two or more Member States to the BWC, these Member States may agree to refer the case to the ICJ, through the procedure of the special agreement.

The second option may also make the Court competent over disputes arising within the scope of the BWC. Called the compulsory jurisdiction, this possibility allows States Parties to the Statute (namely the UN States Parties pursuant to Article 93 §1 of the Charter ) to accept the compulsory jurisdiction of the ICJ over all or certain matters listed in Article 36(2) of the Statute: “The States Parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: (a) the interpretation of a treaty, (b) any question of international law, (c) the existence of any fact which, is established would constitute a breach of an international obligation, (d) the nature or extent of the reparation to be made for the breach of an international organization” . The main condition in such situation is the reciprocity: if one or more State party to the dispute did not accept the compulsory jurisdiction of the ICJ, the Court cannot not have jurisdiction on that basis.

The last possible option for the Court to have jurisdiction over BWC-related disputes is the Forum Prorogatum. As defined by Judge LAUTERPACHT, the Forum Prorogatum is “The possibility that if State A commence proceedings against State B on a non-existent or defective jurisdictional basis, State B can remedy the situation by conduct amounting to an acceptance of the jurisdiction of the Court” . Although it is not expressly mentioned in the Statute, Article 38(5) of the Rules of the Court provides for the beginning of this procedure with the transmission to the other party of the application made against it . The forum prorogatum was first used before the ICJ with the Corfu Channel case in 1948  and more recently in 2008 in the case Djibouti v. France  for which “The French Republic consents to the Court’s jurisdiction to entertain the Application” . The forum prorogatum may grant jurisdiction to the ICJ over a dispute arising within the context of application or interpretation of the Biological Weapons Convention: one State Party to the BWC may accept the jurisdiction of the Court in any dispute where it is opposed to another Member States within the scope of the application of the provisions of the BCW or for the interpretation of the text.

However, the jurisdiction ratione personae is not sufficient to grant jurisdiction to the ICJ. The Court shall also have the ratione materiae jurisdiction, in other words, over the ‘subject of the dispute’ . Although Article 36(1) of the Statute of the Court determines a wide scope of cases: “all cases which the party refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force” , the following paragraph provides for a much precise scope: “in all legal disputes concerning (a) the interpretation of a treaty, (b) any question of international law, (c) the existence of any fact which, is established would constitute a breach of an international obligation, (d) the nature or extent of the reparation to be made for the breach of an international organization.” . Pursuant to Article 36, it appears that the Court has jurisdiction ratione materiae over any subject matter of dispute . The jurisdiction of the ICJ over matters related to the application of the BWC, compliance to the Convention and interpretation of the text seems to have no objections, provided that the other requirements of the Court’s jurisdiction are fulfilled (jurisdiction ratione personae, ratione temporis).

One specificity of the ICJ is the possibility for the Court to indicate provisional measures: “The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.” . Provisional measures are ordered “to preserve the respective rights of the Parties pending the decision of the Court” , in other words, to ensure that during the examination of the case by the Court, neither party to it may act in such a way that can aggravate the dispute . Provisional measures were recently ordered in the Ukraine v. Russian Federation case in 2022 where the Court held that “The right of Ukraine that it has found to be plausible […] is of such nature that prejudice to it is capable of causing irreparable harm. Indeed, any military operation in particular one on the scale caried out by the Russian Federation on the territory of Ukraine, inevitably causes loss of life, mental and bodily harm, and damage to property and to the environment”  and therefore ordered that “The Russian Federation must, pending the final decision in the case, suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine.” .

In addition to the adjudicatory settlement of dispute, the ICJ may provide legal opinions in the form of Advisory Opinions that may be requested only by public international organisations only. Pursuant to Article 96 of the UN Charter, only the UN General Assembly and the UN Security Council may request the ICJ to give and advisory opinion “on any legal question” . In addition, this article empowers the other organs of the UN as well as the specialized agencies to request advisory opinions of the Court, only “on legal questions arising within the scope of their activities” and only with the prior authorization of the UN General Assembly . Excluding a couple of exceptions, the advisory opinions delivered by the ICJ are not legally-binding upon the body/entity requesting the advisory opinion or upon States, despite their recognised heavy legal weight  (some evoke the law-making effect of the ICJ Advisory Opinions ).

The adjudicatory settlement of the International Court of Justice is, despite the absence of an express mention in the Biological Weapons Convention, a mean of dispute settlement applicable to the biological disarmament regime, provided that the conditions developed in this section are fulfilled. This regime would benefit from developing the role of the International Court of Justice as a mean of dispute resolution. Indeed, the ICJ is an effective, reliable and stable instrument. It also allows, in the absence of any amendment of the BWC, to have a means of dispute resolution at the highest level. Despite this, one main obstacle remains: the recognition of the Court's jurisdiction. As this is purely optional, a State may simply decide to refuse to consent to the Court's jurisdiction, thus blocking the resolution of the dispute. 

However, in any case, the ICJ is an indispensable instrument of the international legal system, and the biological disarmament regime would be wrong do without such a tool.

Pursuant to the Charter of the United Nations and its own Statute, the International Court of Justice was designed to resolve inter-States disputes and deal with breaches of international obligations. Only States may be party before the ICJ. To ensure accountability of individuals who allegedly committed international crimes, the International Criminal Court was created.

4.2.2. The International Criminal Court

Created by the Rome Statute signed on 17 July 1998  and entered into force on 1 July 2002, the International Criminal Court (hereafter ICC) is the result of a long process of institutionalisation of international criminal justice. This process began with the prosecution of the crimes of the Second World War in the Nuremberg and Tokyo International Military Tribunals created respectively in 1945 and 1946 and was continued with the establishment of ad hoc International Criminal Tribunals for the former Yugoslavia in 1993 and for Rwanda in 1994. Similarly to the International Court of Justice, the International Criminal Court is a permanent standing Court, however, the two jurisdictions present important differences.

Unlike the International Court of Justice, the International Criminal Court aims at prosecuting individuals responsible of core international crimes as defined in the Rome Statute. These crimes are expressly listed in the ICC Statute , thus strictly limiting the ratione materiae jurisdiction of the Court. The ICC may indeed hear cases in respect of the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. All these offences are precisely defined in Articles 6 to 8bis. Although these crimes may involve or may have been committed with weapons of mass destructions such as biological weapons, the offences defined in the Rome Statute are indeed only repressing the use of WMD. And if the Chemical Weapons Convention expressly prohibits the use of chemical weapons , the BWC does not expressly prohibits the use of biological weapons, despite the commitment of the Preamble: “Convinced that such use would be repugnant to the conscience of mankind”. Therefore, as it stands, the use of biological weapons, while punishable under International Criminal Law (ICL), does not directly and strictly constitute a violation of the BWC. However, as explained by the International Committee of the Red Cross (ICRC), “Since the retention and production of biological weapons are banned, so must, by implication, be their use, because use presupposes possession” . But remains the impossibility to prosecute individuals for the WMD-related offences such as the manufacturing, production, stockpiling, acquisition or retention of these weapons.

The criminalization of disarmament requirements such as of development, manufacturing, stockpiling, production, acquisition, possession can only be achieved through the amendment of both the WMD disarmament treaties and the Rome Statute. Indeed, to be possible, the criminalization of such provisions shall be expressly provided in treaties and disarmament-related offences shall be introduced in the Rome Statute to extend the ratione materiae jurisdiction of the ICC. However, this incorporation of ICL into WMD disarmament regime and of WMD disarmament related offences into ICL may have some limits. The obstacles encountered by the ICC are likely to be duplicated to these new criminal offences. In essence, the ratione temporis jurisdiction of the Court limits its scope of competence: acts committed before the 1 July 2002 cannot be prosecuted . In addition, the ICC faces certain territorial restraints with the absence of universal territorial jurisdiction and the primacy of States to prosecutes crimes committed in their jurisdiction. Finally, a Member-State to the Rome Statute may, pursuant to Article 124 of the ICC Statute, reject the jurisdiction of the Court for a period of seven years .

Despite these limits, if applicable to the disarmament field, the ICC and International Criminal Law may present numerous advantages as a mean of ensuring compliance through litigation. Prosecuting individuals may indeed enhance the prevention of and the response to activities breaching the BWC by non-State actors such as terrorist groups or individuals: as developed by UNIDIR, “The credible threat of criminal prosecution could strengthen the norm against chemical and biological weapons and serve as a deterrent to anyone considering the development or use of these weapons” . Furthermore, the criminalisation of Article I of the BWC may reinforce the conditions preventing the use of biological weapons through the criminalisation of the development, production, stockpiling, acquisition or retention of biological weapons.

There is then many advantages in incorporating the biological disarmament within the scope of International Criminal Law and especially within the jurisdiction of the International Criminal Court to punish the acts that may lead to the use of biological weapons in addition to the repression of the use itself. However, such hypothesis requires numerous amendments of fundamental treaties making it very unlikely.  

In addition to criminal international tribunals and especially the International Criminal Court, States Parties may try to resolve their disputes arising within the context of the application or interpretation of disarmament treaties through arbitration. The Permanent Court of Arbitration (PCA) is certainly the most important setting for inter-State arbitration.

4.2.3. The Permanent Court of Arbitration

Mentioned in Article 33 of the Charter of the United Nations, international arbitration is a fundamental tool for dispute settlement in international law. It can be defined as the procedure during which a dispute between two or more States is submitted by agreement of the parties to one or more third parties, called arbitrators, who will adjudicate on the dispute by making a legally binding decision . Popular since the end of the Second World War , arbitration indeed presents numerous advantages: autonomy, fast proceedings, control on the choice of the procedure, appointment of arbitrators… Inter-State arbitration may be conducted on ad hoc settings with arbitral tribunals specifically created for the resolution of a determined dispute or following more permanent rules and settings.

Created by the Convention on the Pacific Settlement of International Disputes  signed at the Hague Peace Conference in 1899, the Permanent Court of Arbitration (hereafter PCA) is the first permanent instrument for the resolution of inter-States disputes: “With the object of facilitating an immediate recourse to arbitration for international differences, which it has not been possible to settle by diplomacy, the Signatory Powers undertake to organize a Permanent Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the parties, in accordance with the Rules of Procedure inserted in the present Convention.” . The PCA is not, like the ICJ or other international Courts and Tribunals, a permanent jurisdiction in the strict sense: although it is a permanent international organisation, the PCA is not a permanent standing court. However, it provides for permanent (optional) rules for arbitration, administrative support, appointment of arbitrators…

Under the Permanent Court of Arbitration regime, arbitration between two or more States is governed by the PCA Arbitration Rules of 2012, which are a the result of the combination and consolidation of the former sets of rules of the PCA (in essence the Optional Rules for Arbitrating Disputes between Two States of 1992 , the Optional Rules for Arbitrating Disputes between To Parties of Which Only One is a State of 1993 , the Optional Rules for Arbitration between International Organizations and States of 1996  and the Optional Rules for Arbitration Between International Organizations and Private Parties of 1996 ) and of the inspiration of the United Nations Commission on International Trade Law (hereafter UNCITRAL) Arbitration Rules  adopted in 1976 and updated in 2010 .

The 2012 Arbitration Rules of the PCA may be used in the case of a conflict between a State, a State-controlled entity, intergovernmental organisations, private parties pursuant to a special agreement concluded between the parties to a dispute . Parties to the dispute may, prior to it, agree on the number of arbitrators, otherwise, three arbitrators shall be appointed  (one by each party and the third one by the two arbitrators appointed ). The 2012 rules provide for arbitral proceedings: self-determination of the timetable of the procedure by the tribunal , agreement or determination of the place , language  of arbitration… An important feature is provided by Article 23: “the arbitral tribunal shall have the power to rules on its own jurisdiction” , in other words, it may review the existence, validity of the arbitration agreement, the arbitration procedure… Like numerous international Courts, the arbitral tribunal appointed pursuant to the PCA Arbitration Rules may grant interim measures to maintain the status quo existing at the time of the request for arbitration, avoid imminent harm or prejudice to the arbitral process, preserve useful evidence ... Finally, the award is adopted by a majority of arbitrators , it shall be final and binding upon the parties and motivated by the tribunal .

The Permanent Court of Arbitration may be a tool used by States-Parties to the Biological Weapons Convention to settle the disputes arising over application or interpretation of the Convention. However, to be permanently applicable in this context, the text of the BWC shall be amended to expressly refer to the PCA Arbitration Rules as a mean of dispute settlement. International Arbitration may indeed provide for numerous assets: the choice of arbitrators by the parties to a dispute, of the arbitration process settings… The flexibility and the power that is given to States-Parties to control the arbitration process may indeed make countries less reluctant to accept such mean of dispute settlement, especially when it relates to security matters. However, the lack of elements ensuring compliance to an arbitral award may make the process useless: although a party to a dispute before an arbitral tribunal officially accepts the final and binding nature of the award, nothing in practice prevents a State from not applying a decision that would be unfavourable to it, indeed, as underlined by B. L. SMIT DUIJZENTKUNST and S. L. R. DAWKINS, “Initial consent to arbitration does not guarantee a successful outcome: once granted, consent can wax and wane, it can be delivered under duress and it can be withdrawn as fast as it is given” . In terms of peace and security, only the UN Security Council could then take up the case under Article 34 of the Charter if it considers that the situation of non-compliance with the arbitral award is a threat to peace and security. The PCA system and rules could then be a dispute settlement tool chosen by States Parties to the BWC following an amendment of the Convention. Such amendment, to make the arbitral process and outcomes optimal, shall provide for precise procedural and safeguard elements. If this mean of dispute settlement seems improbable and, in some points, unsuitable, the interpretation of a treaty such as the BWC could be done more flexibly before an arbitral tribunal than an interpretation decided by a standing court. However, such a hypothesis would mean that the interpretation of the Convention requested by two (or more) States in the context of a dispute which concerns only these parties, would have consequences for the future application of the text by all the States parties. And, unless the prior agreement (which must be inserted in the Convention itself) provides otherwise, the arbitrators who will decide on the interpretation of the Treaty are, for the most part, appointed by the parties themselves. And such a situation raises doubts about the partiality of the award, about the adaptation of the decision to the more global application of the Convention.

Despite this, international arbitration and in particular before the Permanent Court of Arbitration could be a more flexible solution to dispute resolution in the context of biological disarmament. And, in addition to international jurisdictions (both ad-hoc and permanent), the resolution of disputes that may arise under the BWC can also be conducted at the national level via State-specific mechanisms in certain cases.

4.2.4. National criminal jurisdiction

In addition to international Courts and Tribunals (both standing and ad hoc), national jurisdiction and especially criminal courts may play a dispute settlement role in the context of disarmament treaties such as the Biological Weapons Convention by investigating and prosecuting international crimes including the use of biological weapons. In matters of international crimes (in essence the crimes defined by the Rome Statute of the ICC: aggression, genocide, war crimes, crimes against humanity), national courts and tribunal have jurisdiction prima facie to investigate and prosecute crimes allegedly committed within their jurisdiction (material, personal and territorial). The ICC is indeed competent over such crimes only in the cases when national jurisdictions are unable to investigate and prosecute or reluctant to do so . Therefore, States and their jurisdictions have the absolute right to prosecute individuals or private organisations for the crimes they allegedly committed within their territory or provided that there are nationals of the prosecuting country.

In addition to these basic rules of jurisdiction, certain countries adopted the so-called universal jurisdiction legislation. According to these norms, States having universal jurisdiction pursuant to their national law, may prosecute any person for certain crimes, regardless his or her nationality, the country where the crimes were allegedly committed, the country of residence among others. Universal jurisdiction is founded on the basis of two fundamental principles of international law according to which certain norms belong to the entire world (erga omnes) and certain obligations are binding upon all States (jus cogens). On this basis and following the aut dedere aut judicare principle (“either adjudicate or extradite”), a certain number of States claim they have jurisdiction to prosecute international crimes committed abroad by non-nationals to avoid impunity.

In this spirit, Belgium adopted in 1993 a universal jurisdiction law (amended in 1999 ) allowing Belgian Tribunals and Courts to prosecute and try persons accused of crimes against humanity, genocide, and war crimes without any requirement of link between Belgium and the act, the alleged perpetrator or the victim . Pursuant to this law, Belgium launched proceedings in 2009 against the former Chadian President (Mr. H. HABRÉ) residing in Senegal for alleged crimes against humanity and against Senegal before the ICJ considering that Senegal failed to prosecute or extradite him (pursuant to the aut dedere aut judicare principle). The ICJ ruled that Senegal failed to comply with its international obligation .  

In a similar spirit, France added in its Code of Penal Procedure in 2009 a provision allowing French Courts to prosecute and try perpetrators of crimes committed outside French Territory pursuant to the application of other French laws or in application of an international convention or treaty . In 2012, the National Counterterrorism Prosecutor’s Office of the Paris Court of Justice launched proceedings for cases related to crimes allegedly committed by the Syrian Regime  (in essence, the Tadamon massacre committed in 2013 in Damascus where dozens of civilians were arbitrarily executed) .

In Germany, the universal jurisdiction mechanism even doesn’t require any complaint from a victim or witness for proceedings to be launched . Pursuant to the German Code of Criminal Procedure (Sect. 152 §2), and as explained by T. BECK and C. RITSCHER, “The German Federal Prosecutor General is obliged to officially take action in all cases of sufficient factual indications as to the commission of a criminal offence according to sections 6-14 of the German Code of Crimes against International Law” . In this context, A. RASLAN a former Syrian Colonel was arrested in Germany in 2019, prosecuted and sentenced to life imprisonment for crimes against humanity. The German Court ruled that A. RASLAN was linked to the torture of over 4 000 persons in a Syrian jail .

Furthermore, certain war crimes expressly include the use of weapons of mass destructions and the author of such crime could be prosecuted before national courts: before the prima facie competent Court (pursuant to the rules of nationality, territory) or before foreign courts in application of the universal jurisdiction if the country responsible for the prosecution fails to act or is reluctant to do so.

However, although the international norm banning the use of weapons of mass destruction is considered as jus cogens and any breach of it may be prosecuted by national courts following the universal jurisdiction principle, it is however uncertain whereas other disarmament obligations attain the jus cogens status or even the qualification of erga omnes norms. Certain find that nuclear disarmament fulfils the conditions to be qualified as jus cogens norms . On this basis, one can assume that, by analogy, given the destructive nature of biological and chemical weapons, their status of weapons of mass destruction, biological and chemical disarmament norms may be qualified as jus cogens too. Then, it seems possible for a national court to prosecute individuals who allegedly breached norms of biological disarmament such as the Biological Weapons Convention. It is therefore possible to imagine the author or instigator of a biological or chemical attack being prosecuted and tried before a foreign national tribunal as well as a person having contributed to the proliferation (transfer, acquisition, development, manufacturing among others) of WMD if the previously evoked condition of jus cogens is fulfilled.

National prosecution of international crimes presents indeed numerous advantages. First of all, States conducting such proceedings may have greater capacities and resources than international tribunals and organisations to conduct long-term and expensive investigations . Secondly, such investigations and proceedings may be launched earlier than before international jurisdictions. Finally, the national prosecution of persons who allegedly committed international crimes allows to counter the reluctance and/or failure of the local State to act in that sense, as well as the absence of jurisdiction and competence of international courts and tribunals such as the ICC . For example, if no jurisdiction requirement of the Rome Statute is fulfilled, thus excluding the ICC’s competence, and if the country prima facie competent does not have the capacity or is reluctant to prosecute international crimes committed within its jurisdiction such as the use of bioweapons, other countries having adopted universal jurisdiction legislation may ensure investigation, prosecution and reparation.

However, national prosecution presents certain drawbacks. First, as developed above, disputes that arise in the context of the application of disarmament treaties are highly political and, international crimes and their prosecution also have an important political impact. Where the ICC is not competent (because of non-ratification of the competent State for example), it is highly unlikely that this State would accept a foreign judicial authority to try its nationals or persons for crimes committed on its territory. The question of "why is this State more likely than others to judge such persons and for such an act" would logically arise. In the example given above, why would Germany or France be legitimate to judge crimes committed in Syria?

Despite these difficulties, national prosecution may constitute a last-chance solution to prosecute individuals who allegedly committed international crimes to avoid impunity. This option may include the prosecutions of authors of disarmament treaties breaches provided that such norms are considered as having jus cogens or erga omnes value. In the context of biological disarmament, national prosecution may also be a possible option for prosecuting BWC-breaches constituting breaches of erga omnes rules or jus cogens norms.

5. Conclusions

It appears from the analysis of the text of the Biological Weapons Convention that the biological disarmament regime lacks dispute settlement mechanisms. Indeed, the BWC only contains two separate tools, in essence, Article V providing for bilateral or multilateral consultations and Article VI giving to States the possibility to refer the dispute to the UN Security Council.

However, these two mechanisms appear insufficient and inefficient. Consultations under Article V present a high-level of uncertainty: when the positions of two or more States are blocked, consultations may not lead to a positive outcome. Furthermore, Article VI, as developed above, has a huge risk of blockage. Indeed, decisions of the UN Security Council rely on the approval of the five permanent members. When one (or more) of these privileged States is party to the dispute referred to the Security Council, it is highly unlikely that the Security Council will adopt a decision to resolve the conflict. Despite different attempts to update the biological disarmament regimes during the successive Conferences and by the establishment of  WMD-common mechanisms such as the UN Secretary General Mechanism or the UN Security Council Resolution 1540 (2004) , the dispute settlement regime of the BWC remains weak, especially in the absence of a legally-binding verification protocol.

To make the BWC dispute settlement regime more efficient, the BWC should be enhanced with inputs from other WMD disarmament regimes such as the Chemical Weapons Convention (CWC) or the Comprehensive Nuclear Test Ban Treaty (CTBT). These instruments indeed have the same dynamics of dispute settlement: they all involve global peace and security objective while dealing with national security (often divergent) interests. Amending the BWC with dispute settlement mechanisms from other WMD regimes could highly improve the conflict resolution in the biological disarmament regime.

Furthermore, non-disarmament regimes may have interesting proposals. As developed in section 4, certain instruments such as the Aarhus Convention, the International Health Regulations, the UN Sanctions Regime or the WTO Dispute Settlement System have interesting and original dispute settlement regimes that may be of interest to improve the BWC.

The Ninth Review Conference of the Biological Weapons Convention will take place in Geneva between the 28th of November to the 16th of December 2022 is unlikely to provide a new answer to this lack of mechanisms. However, some proposals have been made to improve the existing regime. Thus, the Russian Federation submitted to the Preparatory Committee submitted a working document aiming at designating a working group to detail and precise the procedure of Article VI and the roles and powers of the UN Security Council in this context. However, the actual dispute between the Russian Federation, Ukraine and the United States and the consultative meeting requested by the Russian Federation (ongoing at the time of redaction) may recall and highlight the imperative necessity of improving, enhancing and strengthening the dispute settlement regime of the Biological Weapons Convention.